How Net Neutrality Came Back from the Dead

An net neutrality demonstration in Los Angeles. Photo: Flickr/Free Press

One year ago, the net neutrality "nuclear option" seemed virtually unthinkable.

After a US federal court threw out most of the Federal Communications Commission's 2010 open internet protections, it seemed hard to imagine that new FCC chairman Tom Wheeler, who spent most of his career as a top cable and wireless industry lobbyist, would seek to regulate internet access under old-school telephone carrier rules.

But so-called Title II reclassification was precisely what many net neutrality activists had been advocating for years—for good reason.

After all, it was the FCC's fateful 2002 decision to classify "cable modem" service as an "information service"—not a "telecommunications service"—that paved the way for a decade of legal drama and uncertainty in the first place.

(In 2010, then FCC-chairman Julius Genachowski declined to push for reclassification, opting instead to rely on the agency's existing authority. Genachowski's rules were the ones thrown out by the federal court last January.)

In the wake of the FCC's January 2014 court defeat, strong open internet protections looked like a long shot, especially because many of the Silicon Valley tech titans that had previously been the most vocal net neutrality advocates—like Google—were staying conspicuously silent.

"Lobbyists at the largest tech companies literally laughed out loud when I told them we had a strategy to win using Title II," said Marvin Ammori, a tech policy lawyer and net neutrality organizer. "The smartest strategists in the tech community told me that even if all the largest tech companies devoted all their resources to the issue, the cable and phone companies would be just too powerful."

And yet, on Thursday, Wheeler—the former cable and wireless industry lobbyist—completed an astonishing year-long turn-around, and did what many had thought unthinkable. Under Title II authority, the FCC established its strongest-ever net neutrality protections, handing open internet activists (and their public interest allies) a once-in-a-generation victory.

Wheeler's evolution from high-powered industry lobbyist to internet folk hero is one of the most unlikely tales in the history of modern regulatory policy. In addition to passing historic new net neutrality rules, in his first year Wheeler set a fresh high bar for "broadband" service and established a bold precedent for preempting state laws that pose barriers to gigabit fiber networks.

Almost from the beginning of his FCC tenure, Wheeler insisted that he supported net neutrality and maintained that Title II was on the table. But he appeared to have little appetite for reclassification, which would regulate broadband giants like Comcast and Verizon under the traditional telephone "common carrier" system. Wheeler knew full well that such a move would provoke a fierce backlash from industry giants and their anti-regulation allies on Capitol Hill.

Last April, in his first attempt to propose new open internet protections, Wheeler offered a plan that fell far short of Title II reclassification—it relied on the FCC's existing authority—and left the door open to "paid prioritization," which are commercial deals for speedier access to consumers.

Net neutrality advocates went ballistic. Paid prioritization deals are anathema to net neutrality advocates because they represent commercial discrimination, which would make a mockery of equal and open internet access.

The next Google, Facebook, Twitter, Netflix and Skype need a level playing field to thrive, the argument goes. "This is not net neutrality," Craig Aaron, president and CEO of Free Press, said at the time. "It's an insult to those who care about preserving the open internet to pretend otherwise."

Wheeler also faced pushback from his two fellow Democratic commissioners, Jessica Rosenworcel and Mignon Clyburn, whose votes he would need to pass any new rules. Rosenworcel said she had "real concerns" about the plan; Clyburn urged Wheeler to re-evaluate the FCC's entire broadband policy. (The two Republican commissioners, Ajit Pai and Mike O'Reilly, were unlikely to vote for net neutrality rules of any sort.)

Silicon Valley, meanwhile, expressed alarm at Wheeler's proposal. A coalition of tech giants including Google, Microsoft, Amazon, Facebook and Twitter cautioned against any rules that would "enable phone and cable internet service providers to discriminate both technically and financially against internet companies and to impose new tolls on them." Such rules would represent "a grave threat to the internet," the companies warned in a letter to Wheeler.

Many New York City tech companies, on the other hand, were willing to publicly advocate for Title II. In July, representatives from Tumblr, Etsy, Foursquare, Kickstarter, Vimeo—along with the influential investment firm Union Square Ventures—met with Wheeler and told him that the "only way" for the FCC to ensure net neutrality would be to "reclassify broadband internet access service as a telecommunications service under Title II of the Communications Act."

"The public interest community led the way, but we also needed businesses in our coalition," Ammori said. "The New York City tech companies were fearless, smart, and they moved as one."

By May 2014, the pro-Title II grassroots campaign was in full bloom, as groups like Free Press, Demand Progress, and Fight For the Future began organizing millions of online activists to flood the FCC with phone calls and emails. At one point, the FCC's eighth-floor executive office was thrown into chaos after its phone lines were overwhelmed. Then, after HBO comedian John Oliver mocked Wheeler as an industry "dingo," the FCC's online comment system was crippled by web traffic.

Open internet advocates unfurled net neutrality banners at FCC meetings and established an "encampment" outside the agency's downtown DC headquarters. Wheeler gamely posed for pictures on the street with protesters, as he would do again months later when the driveway of his Georgetown townhouse was blocked by activists, preventing him from driving his blue Mini Cooper convertible to work. (Wheeler took the subway.)

Over the summer, as many Democratic lawmakers absorbed a growing backlash from their constituents about net neutrality, it became clear that the political winds were shifting. In July, former Senate Majority Leader Harry Reid, the Nevada Democrat, declared that he would "lead the fight" to protect any new net neutrality rules.

In early September, Nancy Pelosi, the powerful House Democratic leader who represents San Francisco, urged the FCC to pursue Title II. Wheeler now had public assurances from the two top Democratic lawmakers on Capitol Hill that he would be backed against the inevitable Republican assault on reclassification.

By late fall, Wheeler was still on the fence—and still searching for a compromise. Although he'd long insisted that he would not "hesitate" to treat the broadband giants like traditional phone companies, Wheeler seemed hesitant to pursue full reclassification. That reluctance was evident when news leaked right before Halloween that he was weighing several confusing "hybrid" approaches that fell short of full Title II treatment.

Six days after a midterm election in which his party was dealt an historic drubbing, President Obama finally weighed in, dramatically altering the net neutrality debate. Newly unencumbered by electoral concerns, Obama issued a ringing endorsement of Title II reclassification, finally making good on his 2007 campaign pledge that he would "take a back seat to no one" in his support for net neutrality.

Obama's statement, accompanied by an Oval Office video complete with a cheeky "buffering" graphic—a play on Netflix's "internet slowdown" campaign—represented the final piece of political cover that Wheeler needed for a full-on push toward Title II. It also represented a not-so-subtle signal from a president to a FCC chairman who had long been an Obama loyalist, bundling hundreds of thousands of dollars in contributions over two presidential campaigns.

Some critics of Wheeler's proposal—including Republican FCC commissioner Ajit Pai—have suggested that the president's strong support for reclassification gave the FCC chairman little choice but to follow his lead. Pai has repeatedly disparaged Wheeler's Title II proposal as "President Obama's plan to regulate the internet."

Kevin Werbach, a former FCC counsel, says the truth is more nuanced than that. "As a practical matter, Obama's support sealed the deal," said Werbach, an associate professor at the Wharton School of the University of Pennsylvania. But well before Obama's declaration, a Title II outcome seemed increasingly inevitable, he said, thanks to persuasive arguments from net neutrality advocates, strong pressure from big and small tech firms alike, and a sustained effort by open internet activists.