Originally appeared on WIRED
June 25, 2015
By: Marvin Ammori
THE NATION’S NETWORK neutrality drama isn’t over: the FCC’s landmark rules are in court again—after courts threw out two previous FCC net neutrality orders. But there is a little-known front in the fight that has long been central to advancing network neutrality: the commitments that broadband companies make when they merger.
For the last decade, while the court kept throwing out industry-wide rules, network neutrality advocates (like me) were able to extract merger conditions to preserve an open Internet and further entrench the concept. In 2005, AT&T and Verizon each made two-year network neutrality merger commitments; in 2006, AT&T and BellSouth made a 30-month open Internet commitment; in 2011, Comcast and NBC made a 7-year commitment. As someone who has spent 10 years fighting for network neutrality, I have seen these commitments pave the way for the new, even-stronger industry-wide rule now on appeal.
Today, we have another merger, which means, thanks to our successes, another network neutrality condition on offer. Charter, a relatively small cable company, is buying the second-largest provider, Time Warner Cable, and an affiliated company called Bright House Networks. Charter’s merger sales pitch is pretty straight-forward: it argues that it has always been too small to bully Internet companies, TV makers, and its own customers, so it has“un-cable” practices they hope to extend. The slowest speed the company usually offers is 60 Mbits, which is great for online TV, and Charter has no data caps, usage-based charges, or modem-rental fees. Charter also posts a laudable no-cost interconnection policy for Internet backbone companies, and Charter has never been accused of any network-neutrality violations.
Still, we must “trust, but verify.” We need to ensure that Charter will not lose its way after taking over Time Warner and becoming four times larger. That’s where merger commitments come in. In its legal application filed today with the FCC, Charter makes its case that the merger will benefit the public, and offers several legally enforceable commitments. The FCC will review the application, along with the initial commitments made, likely for the next six months, with input from the public.
Charter hired me—which, to be honest, took some humility on its part since I have helped lead public campaigns against cable companies like Charter—to advise it in crafting its commitment to network neutrality. After our negotiation, I can say Charter is offering the strongest network neutrality commitments ever offered—in any merger or, to my knowledge, in any nation. In fact, in the end, I personally wrote the commitments. For the first time, I’d like to lay out what those commitments are and why I think they is so strong
1. Accepting the FCC Order
When the FCC’s network neutrality order was issued, net-neutrality advocates broke out in hosannas and praise, calling them the “strongest open Internet rules to date,” and “the biggest victory for the public interest in the agency’s history.”
Charter is accepting almost all of the order—the bright line rules and interconnection mandates. (We will get to the “general conduct rule,” where Charter is accepting a variation.) The FCC’s order flat-out prohibits technical blocking, discrimination, and paid prioritization in impressively sweeping, “bright-line” language. In addition to the bright-line bans, the FCC asserted authority to hear complaints regarding interconnection disputes to ensure reasonable practices. The companies affected, including Netflix, Cogent, and Level 3, support the standard and struck deals with AT&T, Verizon, and Comcast. So the standard has been changing the market and working so far, and the first complaint, filed this week, will help define what’s legal and what isn’t.
Charter is agreeing to abide all of that—the strongest rules to date—regardless of litigation.
2. Going Beyond the General Conduct Rule
In addition to rules about fast lanes and slow lanes, the FCC adopted a “general conduct rule” to cover economic forms of discrimination. But it also invited complaints and offered to review them based on a wide range of vague factors to consider.
Many top advocates were unhappy with the rule’s vagueness, including the Electronic Frontier Foundation, which criticized the rule as not being the “light-touch” regulation the FCC had promised. They also pointed out that the rule might be too expensive to help startups or advocates because it had so many factors that it could require an expensive team of lawyers and economists to litigate.
Rather than attempt to rewrite that rule with different standards or analogies, Charter and I focused on the specific economic practices that prompted the rule. The main problematic practice discussed in the FCC’s docket is zero-rating. “Zero rating” happens when a phone or cable company caps how much data you use–at, say 5, or 500, gigabytes a month–and then charges you extra or slows down your connection once you reach that limit in a month. Zero rating is the practice of exempting a few favored companies from the cap–like saying Netflix doesn’t count against the cap, but Fandor, Vimeo, and Amazon Prime do. Since zero rating favors some sites over others based on the broadband provider’s preferences (not the users’), my allies and I urged the FCC to ban zero rating in all forms, but the FCC didn’t go that far. Charter necessarily will. In fact, it will commit to no data cap at all–and no usage-based billing–therefore it will be unable to exempt any applications from those practices.
This commitment may be stronger than the general conduct rule, which subjects this practice to a complex analysis, rather than simply banning it.
Charter is agreeing to these conditions for 3 years, which is longer than the AT&T and Verizon conditions, but shorter than the most recent Comcast-NBC condition. We advocates have accomplished a lot through a series of 2-3 year conditions that have shaped the industry.
Are These Promises Strong Enough?
Even though these are the strongest network neutrality commitments offered, and go beyond the FCC’s order concerning zero-rating, I am certain some of my fellow advocates will ask for more. And that is fine. I expect some to want a longer duration, a ban on other (likely esoteric) practices we’d recognize as harmful, stronger interconnection language, or a ban on fees based on a particular traffic exchange and means of delivery.
I probably won’t disagree with those calls, but I am still very happy with what we were able to achieve. And here’s why.
Charter is offering commitments that go further than any before. It’s doing so because millions of Americans stood up for an open Internet and because officials like FCC Chairman Tom Wheeler had the courage to do the right thing. And it helps that Charter’s current practices and plans reflect these commitments. It turns out that broadband companies can have great success offering access to the unfettered Internet. And, as each year and debate passes, more broadband companies will start to see that their future lies not in restricting an open Internet but in betting on it.