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McAdams On: A Free and Open FCC

At least two people were physically dragged from the open public meeting of the Federal Communications Commission on Thursday. They were not threatening nor trespassing, but speaking up about something for which they clearly had great passion—a “free and open Internet.” The commission voted on a Notice of Proposed Rulemaking to alter network neutrality rules, which the D.C. Court of Appeals tossed out in January to absolutely no one’s surprise given Verizon was the plaintiff.

Network neutrality has become one of the most divisive policy issues in modern culture, like communism in the ’50s. You either are, or not. There is no in-between. There is no compromise, no gray area. Network neutrality separates the public IP network from the bits it carries. It means content providers and users control the Internet, while ISPs maintain the network.

Whether or not that’s fair to the ISPs who invested in the networks—or even if purely impartial management is technically feasible—is not the issue for most people. There is a huge, collective fear issue at work with network neutrality. There is a fear that the Internet as we know it would go away, with its infinite well of cat comedy, MOOCs, the sublime creations of Marc Ten Bosch, and the great crowd-sourcing democratization of investment and philanthropy.

The assumption is that all these things and more would be altered or destroyed without network neutrality, as well as all the unforeseen wonders yet to be invented with a “free and open Internet,” the phrase invoked by one of the citizens* as she was dragged from the FCC public meeting.

That “free and open Internet” is actually a Google meme is but a sad footnote in this nearly decade-long conflict. The early stages involved Comcast and content pirates, who are thieves in goatees and therefore apparently folk heroes unless you’re an actor. (Whether or not Google dispatched the pirates is too farfetched to consider so we’ll pretend like I didn’t bring it up.) The bottom line here is that network neutrality started out as a war of titans and remains that way at the macro level. But these titans have now sufficiently thrown a scare into the populace such that its members lined the street in front of the FCC building and crowded the meeting room inside.

Now I’m going to throw in something that persons even a moment younger than me will not remember or perhaps believe. There really was a time in this country when public assembly and rational debate were civic duties. Issues of public interest were discussed and ultimately crafted in accordance to majority will, not merely the interest of those in charge of carrying out the decision. Democracy was a time-honored practice.

There is less respect now for democratic participation than there is disdain, a sort of condescending dismissal of the great unwashed by those in positions of authority. The publicly assembled have become the collectively disenfranchised, regarded with the same nictitating detachment as dissenters around the world living under regimes considered oppressive.

But where does one draw the line? It’s a good question. The commissioners have held public forums around the country on network neutrality. More than 20,000 comments have been filed in the commission’s database on the subject; possibly more, given that searches of the two net neutrality dockets retrieve the “10,000 most recent records.” Literally thousands of comments have been filed in the last few months. This electronic forum, one might think, is a virtual public assembly sufficient to serve that purpose, but protesters lining the sidewalk of one of the driest public agencies in D.C. suggests otherwise.

The public, in whose interest the FCC purports to act, is in adamant opposition to the commission’s direction on network neutrality. It’s a direction that frankly hasn’t even taken a form. It’s more like a gesture toward the far horizon; a Notice of Proposed Rulemaking on letting ISPs charge more for data-heavy traffic.

“What we are dealing with today is a proposal not final rules. Nothing in this proposal authorizes paid prioritization,” FCC Chairman Tom Wheeler stressed after the sloganeering woman was hauled off by armed guards. He was visibly shaken, as well he should have been. The spectacle of people being dragged away from a public forum for voicing their opinion should make us all deeply uncomfortable. It suggests a fundamental breakdown of democracy, not so much because people should or should not have the right to speak during an FCC meeting, but that they felt so strongly about doing so that they risked the public humiliation of being physically restrained and thrown out.

It suggests a complete and utter failure on the part of the FCC to fully inform the public in a rational, contextual way, why ISPs want to charge a premium for the biggest bandwidth users and in what way this is justified. Far too often, FCC orders are packed with the type of promotional jargon once reserved for the most brazen of marketeers. The 2010 order opens thus:

“The commission takes an important step to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression.”

It lacks any mention of network management, which should be part of any discussion involving Internet regulation. The commission uses emotional language for its own ends, but rejects in-kind responses. If the agency’s revolving-door sovereignty could be a little less self-promotional and a little more devoted to ratiocination, they just might start to rebuild public confidence.

Unfortunately, Thursday’s FCC drama was no isolated phenomenon, but rather the logical result of a pattern of disregard for the public trust, which culminated with the appointment of a professional lobbyist to run the agency. That Chairman Wheeler once headed lobbies representing the interests of the nation’s largest ISPs is lost on absolutely no one in the free world. Whether or not he is capable of being a completely impartial chairman doesn’t matter. There is no way, ever—especially after the events of May 15, 2014—that he will be perceived as being objective and fair.

Unfortunately, everyone loses.

*Assumption based on speaking patterns.