Yes, the FCC’s website crashed on Tuesday. And that’s really a shame, mostly because a fairly tectonic shift in tech policy did not get the coverage it deserved.
Net neutrality, when understood as a policy in recent public discourse, is an idea that has only, thus far, applied to Internet Service Providers (ISPs) — Comcast, Time Warner Cable, etc. The principle, in simplest form is one of nondiscrimination: all data should be treated equally. As controversial as this concept has been in recent months, it’s important to remember that all of the fuss has only been about wired connections. That is, until recently.
First, a little context.
Wireless companies, such as AT&T and Verizon Wireless (who jointly control over two-thirds of the wireless marketplace) haven’t been a part of this debate largely thanks to a 2007 ruling by the FCC. Though the wireless companies are subject to common carriage rules by statue, the FCC’s 2007 decision deregulated the Internet access services that these same companies provide. (This is because the FCC classified wireless broadband access service as an information service, not a telecommunications service.) Indeed, as Susan Crawford argues in Captive Audience, though “the personal-computer model of communications comes from a tradition of nondiscriminatory commodity transport of information, in which the network provider is not in charge, the smartphone/tablet explosion began in a radically different environment.” [Crawford, Captive Audience, p. 159].
Even since the coalescence of a deregulated environment in 2007, wireless carriers like AT&T and Verizon worked fastidiously to ensure that “net neutrality creep” (why did I just coin that) never became a thing. Pivoting back to Crawford in Captive Audience:
Given the capacity problems of their wireless networks, Verizon and AT&T will claim (and have claimed) that it is essential that they curate and prioritize the tidal waves of data flowing to users’ wireless handsets. They have to be choosey, they say, because their networks can handle only so much video traffic.e this is why Verizon fought so hard against the extension of common-carriage-like network-neutrality mandates to wireless Internet access in late 2010; the company was planning on charging for online video for other ‘premium’ services and did not want o have to treat all bits of data equally. 
Somewhat importantly for what comes next, Google also joined Verizon’s position in 2010, mostly “in order to forward its own plan s for the Android wireless handset operating system.” [Crawford, Captive Audience, p. 162.]
To boot, in the FCC’s famed 2010 Open Internet Order, the FCC argued that though “there is one Internet, which should remain open for consumers and innovators alike…mobile broadband presents special considerations that suggest differences in how and when open Internet protections should apply,” and went on to “apply certain of the open Internet rules.” [Open Internet Order at 17959, ¶ 93-94, 99.] Not only did the FCC apply a different standard of no-blocking principle to wireless broadband providers, but it also flatly did not apply the “no unreasonable discrimination” rule.
So yeah. Not a whole lot of love for net neutrality in the realm wireless broadband.
Fast-forward to Monday and Tuesday.
On Monday The Internet Association filed its public comment with the FCC. The Internet Association is pretty much exactly what its title says: an association of the big-wigs on the Internet. Their members include the likes of Amazon, AOL, eBay, Facebook, Netflix, Reddit, Twitter, Yahoo!, and, naturally, Google.
Section five of their comment has this fun little sub-head: “The Scope of the 2010 Rules Should Eliminate the Distinction Between Fixed Wireline and Mobile Broadband Internet Access Services.”
Well then. Here’s the relevant portion:
It is time for the Commission to apply the same non-discrimination, no-blocking, and robust transparency rules to the wireline and wireless platforms…There is no further reason to differentiate between the two platforms in applying the rules. To the extent wireless networks are constrained by bandwidth, the Commission’s existing exception for reasonable network management provides sufficient flexibility. The crucial difference between wired and wireless access for this issue is how providers manage their networks. The same fundamental principles and rules, however, need to apply to both wireline and wireless access. The Commission now has the opportunity to set the stage for parity. [pg. 21 (emphasis added)].
So, a bit of a shift for Google then.
Where this takes a surreal turn is in Comcast’s public comment to the FCC.
Though Comcast never comes out in full support of the same position that The Internet Association takes, it’s probably more generous than you’d ever imagine it to be: “While (distinctions in policy between fixed/wired and mobile broadband services) might have been defensible in 2010, the NPRM’s recognition of the ‘significant changes since 2010 in the mobile marketplace’…supports at least a refreshed examination of that approach…The Commission should carefully consider arguments as to whether the current technological environment continues to justify the differential treatment afforded to fixed and mobile broadband services.” [pg. 40]
On Tuesday I had a fairly visceral reaction to Comcast’s position:
Comcast’s support for ‘net neutrality’ for mobile broadband=ensuring potential competitors don’t see increased fee extraction.
— Logan Koepke (@jlkoepke) July 15, 2014
But, in reality, I’m really not sure my initial instinct was right. It’s hard to call wired and wireless broadband providers competitors in any real way.
Perhaps this is Comcast saying “hey, if we are going down, we’re all going to go down,” or perhaps it’s Comcast ensuring there’s no potential for fee extraction with ever-increasing wireless broadband use and demand for multi-platform video (see your friendly iPhone/iPad and its Xfinity app/TV Everywhere offering). I think that last line of reasoning is probably more persuasive as the 2010 Open Internet Order effectively allowed mobile broadband providers to discriminate against applications that do not compete against their other primary service offerings (voice and video telephony).
All in all, while it’s disappointing that this fairly major shift was subsumed in the deluge of “The FCC Website is Down!” articles, it doesn’t seem like the salience of net neutrality and its applicability to mobile broadband will be going anywhere. In fact, The Internet Association’s upcoming campaign on the FCC’s net neutrality proposal may largely spotlight the current disparity in regulation — and that’s a good thing.