A Fond Farewell

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Yes, we must be vigilant. And the first step in such vigilance is to ask those who want to rush to
take away existing protections a simple question: where's the fire? What has happened since the
Open Internet rules were adopted to justify uprooting the policy? As I said a moment ago, network investment is up, investment in innovative services is up, and ISPs revenues - and stock prices - are at record levels. So, where's the fire? Other than the desires of a few ISPs to be free of meaningful oversight, why the sudden rush to undo something that is demonstrably working? Vigilance requires the FCC or the Congress make the case as to why the American tradition of open networks should be reversed. Fortunately, the rules under which the FCC must operate provides for just such vigilance. Contrary to what you might have heard, reversing the Open Internet rules is not a slam dunk. The effort to undo an open Internet will face the high hurdle, imposed by the Administrative Procedure Act, of a fact-based showing that so much has changed in just two short years that a reversal is justified.

Let's remember that the Open Internet decision came after ten years that saw vast changes in the
technology of the Internet, as well as in the services it enables. In short, a lot happened leading
up to the 2015 decision - it is hard to make a case that the past two years come even close to that
revolutionary period.

The recent D.C. Circuit decision was a strong and resounding affirmation of the FCC's authority as well as the soundness of its decision based on the record. If there is a reversal of the Open Internet rule, it will have a high hurdle to vault to prove to the same court why its 2016 decision was wrong.

It is quite possible that Congress will be the focus of efforts to take away open networks.  Congress, of course, does not bear the burden administrative procedure imposes to justify its decision. It also has the ability to completely redefine just what constitutes net neutrality. It might be worthwhile, therefore, to define the key concepts behind net neutrality that truly preserve a fast, fair, and open Internet.

It's a matter of Truth in Packaging. If something is deserving of being called net neutrality, it must be Comprehensive, Continuing and Consistent:

*?Comprehensive: Limiting the definition of Net Neutrality to blocking, throttling and paid prioritization is an empty promise if it is not accompanied by the authority to comprehensively protect against the power of broadband gatekeepers, not just some of their conduct.

*?Continuing: We do not know how the Internet will evolve and ISPs will take advantage of new technology. A general conduct rule - which I've analogized to a referee on the field with the ability to throw a flag - captures conduct whether is it new or old, blatant or nuanced with ongoing regulatory oversight and the ability to act where necessary to prevent anti-consumer and anti-competitive practices.

*?Consistent: By this, I mean a consistent standard so that everyone - whether an ISP, a consumer, or an edge provider - knows the yardstick that will measure fairness. Since the time of the Interstate Commerce Act in 1887 there has been a consistent standard for judging carriers' practices: are those practices just, reasonable, and not unreasonably discriminatory? These concepts have 130 years of jurisprudence behind them, and they have evolved to effectively address the incentives that network operators may otherwise have to exploit their position to the detriment of consumers or competition.
Passing legislation or adopting regulations without these key provisions and calling it net neutrality would be false advertising."

"Truth in Packaging"? "False Advertising"? Shades of OFCOM?

Note his reference to Abraham Lincoln and need for people to retain their virtue, which has sadly been cast aside by the Spirit of Prejudice. He also cites vigilance. Hence the importance of Tom's three guidelines for assessment. Thus Comprehensive, Continuing and Consistent are the watchwords.


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