The Comment Period Is Over, But the Battle for Net Neutrality Ain't Done Yet

Activists are gearing up for a lengthy court battle, and public outrage may force the FCC to punt the issue to Congress.

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Aug 31 2017, 12:26pm

Image: Free Press

For nearly two decades, the federal government, public interest advocates, and corporate giants like AT&T, Verizon and Comcast, have been fighting over how best to ensure that the internet remains a free and open platform for innovation, economic growth, and civic empowerment.

In 2017, it's easy for most Americans take net neutrality for granted—especially privileged people in US cities, who enjoy faster and more reliable access than folks in rural America. Now, this internet policy fight is reaching a turning point as public interest advocates, telecom titans, and federal officials alike shift their attention to the urgent matter of ensuring that everyone in America has access to affordable high-speed internet service.

But the battle for net neutrality ain't over just yet.

Net neutrality is the principle that internet service providers (ISPs) like AT&T, Verizon and Comcast shouldn't be able to discriminate against rivals or sell internet fast lanes to deep-pocketed content companies like Google and Amazon. Open internet advocates argue that strong federal net neutrality rules ensure that the internet remains an open and vibrant platform for tech startups, digital commerce, and free speech online.

These principles are now at risk because of President Trump's Federal Communications Commission chief Ajit Pai, who has made "weed whacking" the Obama-era net neutrality protections a personal crusade. As the August 30th deadline for final FCC comments passed on Wednesday, open internet activists warned that the fight to protect net neutrality has reached a new phase, but is far from over.

"August 30th could very well mark the official beginning of the end for the open internet," Gigi Sohn, who served as Counselor to former FCC Chairman Tom Wheeler, said in an email to Motherboard. But, Sohn added, if Pai continues down this path, "he is fooling himself." Indeed, public interest lawyers like Sohn are already preparing to sue to the FCC for violating the Administrative Procedure Act, which many open internet advocates believe Pai has already violated, in an effort to stop Pai's net neutrality rollback in its tracks.

The reason why net neutrality is so important—and why this issue remains so fiercely contested—is that it amounts to the free speech principle for the internet. This open access concept is absolutely essential, net neutrality advocates argue, because the entire US economy—and indeed society—is now deeply rooted in internet connectivity. More than that, net neutrality ensures that US democracy will continue to thrive by allowing all voices—even unpopular ones—to be heard.

"Net neutrality is what democracy looks like," Winnie Wong, a veteran political activist involved in Occupy Wall Street, People For Bernie, and the Women's March on Washington, told Motherboard in a phone interview on Wednesday. "Without it we can't tell the story of the struggle for social justice. If the government empowers corporate monopolies to dictate how and what we can share online, we'll never be able to advance our vision of racial justice, climate action, and economic equality."

With so much at stake, US faith leaders are also getting involved. "An open internet is vital for our organizing efforts here in North Carolina, and around the country," the Rev. Dr. William J. Barber, II, a leading national justice organizer and President of Repairers of the Breach, said in a statement.

"Communities of color across the United States depend on an open internet to thrive."

Here's the heart of the dispute: In 2015, after years of costly litigation, the Obama-era FCC under Tom Wheeler reclassified broadband internet access providers like AT&T, Verizon, and Comcast as "common carriers" under Title II of the Communications Act.

That means these big broadband companies are required to serve everyone in the country equally, just like traditional phone companies. It also means they're subject to strict, utility-style regulation by the US government. Needless to say, the broadband industry is not happy about this state of affairs. The nation's largest ISPs all claim that they support internet openness, but they also violently object to Title II classification, which they assert has depressed broadband capital investment. (Public interest groups vehemently dispute that claim.)

Open internet advocates argue that net neutrality is especially important for marginalized populations that feel threatened by the Trump administration. "Communities of color across the United States depend on an open internet to thrive," Malkia Cyril, executive director at the Center for Media Justice, said in an email to Motherboard. "From resisting police violence to demanding fair wages—the political voice and economic opportunity that the internet enables must remain protected by Title II net neutrality."

Net neutrality is also an important issue for the tech startup community because the nation's largest broadband providers—Comcast, AT&T, Verizon, and Charter—exert near-monopoly power over internet access in many cities around the country, and they all have video and communications offerings that directly compete with online services like YouTube, Netflix and Skype—not to mention the next generation of upstart internet companies. Without strong FCC net neutrality protections, these corporate giants could snuff out smaller rivals in their infancy.

Former Verizon lawyer Pai appears hell-bent on rolling back the FCC's net neutrality policy, but he may not have the US public on his side. Recent polling shows that most Americans support maintaining the current FCC Title II net neutrality rules. Support for the FCC's policy crosses party lines, with 73 percent of Republicans, 80 percent of Democrats, and 76 percent of independents in favor of the current policy.

Facing such strong public opposition to his net neutrality rollback, Pai may punt the issue to Congress, which is actually what the nation's largest ISPs want. The broadband industry's real goal, according to many tech policy experts, is to move this battle to the Republican-led US Congress, where deep-pocketed ISPs can lobby to craft internet policy rules that favor themselves. If the ISPs are successful, look for a spirited net neutrality debate this fall featuring Motherboard's favorite member of Congress Rep. Marsha Blackburn of Tennessee.

This fight is far from over.