FCC Chairman Tom Wheeler today. Screengrab: C-SPAN3
In a 3-2 vote, the Federal Communications Commission voted to reclassify broadband internet access as a “telecommunications service” under Title II of the Communications Act, subject to tough new rules designed to preserve internet openness. The new policy is certain to spark legal and political challenges, but for now, net neutrality advocates can claim a once-in-a-generation triumph.
"This is no more a plan to regulate the internet than the First Amendment is a plan to regulate free speech,” FCC chairman Tom Wheeler said during a hearing today, reacting to critics who say the new rules represent government overreach.
The FCC’s new policy, which was expected, is the culmination of more than a decade of fierce debate, legal jousting and political organizing over the best way to ensure net neutrality, the principle that all internet traffic should be treated equally. And it’s a vivid example how of a new generation of activists is using the internet to mobilize social movements against some of the most powerful economic and political forces in the country.
“The power of big money and special interests controls so much of what goes on in Washington, DC," said former FCC commissioner Michael Copps, a longtime champion of net neutrality who now serves as special adviser at Common Cause. "But when the people are informed and their concern is made clear to public officials, this kind of grassroots movement can still trump the power of big money."
Net neutrality advocates argue that all internet users should have equal access to the internet, just like all Americans have the right to travel anywhere in the 50 states without a passport. Without this open access, which most of us take for granted, startups like Google, Twitter and Facebook might never have flourished.
The National Cable and Telecommunications Association, the industry’s main trade group, mocked the FCC’s new open internet policy, and warned that consumers would face higher prices and taxes thanks to the FCC’s action.
“The day after this order becomes law, consumers will see nothing different in their experience,” NCTA president and CEO Michael Powell said in a statement emailed to Motherboard. “However, they surely will bear the burden of new taxes and increased costs, and they will likely wait longer for faster and more innovative networks since investment will slow in the face of bureaucratic oversight.”
The new FCC rules prohibit blocking, throttling, and paid prioritization—three concepts that are at the core of net neutrality. Paid prioritization deals are commercial contracts in which ISPs strike special arrangements with deep-pocketed companies for preferential treatment, potentially snuffing out startups. Through a process known as “forbearance,” the FCC won’t apply several aspects of Title II, in order to avoid imposing taxes, fees, and other burdens associated with utility regulation.
Open internet advocates have long called for Title II reclassification, which they argue is necessary to ensure that the internet remains an open and level playing field for innovation and economic growth. Over the last year, a broad coalition of net neutrality activist groups mobilized millions of people, shutting down the FCC’s switchboard with calls and flooding its website with comments.
In some ways the Title II campaign was reminiscent of the 2012 effort to defeat the Stop Online Piracy Act (SOPA), which internet activists warned could have paved the way for online censorship under the guise of copyright protection.
Big Telecom just got knocked back onto its heels, but this fight is not over by a long shot
But there’s an important difference between the two battles, according to Julie Samuels, executive director of Engine, an advocacy group that organized tech startups to support reclassification. The SOPA activists succeeded in killing an objectionable bill—no small feat—but the Title II advocates managed to help bring about “affirmative policy,” a more difficult, and far sweeter, achievement.
The nation’s largest internet service providers, including Comcast, Time Warner Cable, Verizon and AT&T, vehemently opposed reclassification, which they argued will subject them to onerous new regulations and reduce their appetite for infrastructure investment. It’s virtually certain that highly paid telecom lawyers will fight the new rules in court and that the industry’s political allies will challenge the new rules in Congress.
In other words, Big Telecom just got knocked back onto its heels, but this fight is not over by a long shot—in many ways it’s only just begun. One particular area to watch will be the FCC’s forbearance power to pick and choose which aspects of Title II the agency wishes to apply.
"This decision is incredibly important, but it’s far from the final say in the ongoing running battle over the future of communications,” said Sascha Meinrath, a tech policy expert and net neutrality advocate who runs X-Lab. “Rather, the FCC will open a three-front battle for the future of an open and free internet, one that will be waged in legal, congressional, and agency and forbearance arenas.”