The Net Neutrality Sellout: Still Bad, But What’s Next?

Net Neutrality

It’s likely FCC Chairman Wheeler will obstinately continue trying to kill the Internet. But it’s far from too late to do something about it.

The sound you’re hearing is a million Internet users screaming “fuck” at the top of their lungs. That’s because the fight to protect Net Neutrality has just entered a critical phase.

A brief recap: Earlier this year, the FCC lost an important legal battle when a federal court struck down convoluted Net Neutrality rules enacted in 2010. It’s easy to blame the court, but the FCC brought that verdict on itself thanks to a 2002 decision to classify broadband like cable services instead of like a public utility. (Read more on that here.) The FCC vowed to do everything it could to support an open Internet, but in late April, it revealed proposed new rules that were, to put it mildly, a poison pill shit sandwhich. Primarily written by Chairman Tom Wheeler, the rules were described as protecting net neutrality, but actually enshrined its opposite, allowing companies to charge higher rates to ensure faster speeds for those websites willing to pay. It was a terrible move, but fortunately, the response was… not positive.

After intense backlash from activists, elected officials and eventually a consortium of web-based and tech companies, late last week the FCC revealed plans to amend its initial proposal. So it was that yesterday, the FCC voted along party lines to make the revised version of this proposal available for public comment.

By now you know that the rules barely change anything about the proposal. In essence, they remain a mishmash of blatant giveaways to the telecommunications industry, but now include slightly less vague promises to ensure the consumer isn’t ripped off, and that startups aren’t squeezed out of the online marketplace. It’s nothing more than a sop, and you’d be forgiven for assuming that the fix is firmly and irrevocably in.

However: all is not lost. Despite the rather toothless attempt to mollify the critics, and despite the clear-cut corruption on display at the FCC, the decision by Chairman Tom Wheeler to offer even slight revisions, and statements made by the two other Democrats on the FCC committee, offer hope that there is a real chance to beat back this latest attempt to turn the Internet into a feudal petting zoo.

With that glimmer of hope in mind, here’s what you need to know about this stage of the fight. Let’s get punchy, shall we?

Net Neutrality

Cause For Optimism

Yes, the new rules are absolutely terrible. Promising the thing that everyone wants – net neutrality – while delivering the precise opposite, they insult the subtlety of the word “Orwellian”. Even so, there’s a silver lining: despite longstanding ties to the cable industry which clearly influenced FCC Chairman Wheeler’s whimsical concept of Net Neutrality, he clearly wants to at least appear that he sincerely listens to citizens.

Immediately after the original version of this terrible proposal was revealed, the outrage it caused led Wheeler to issue a statement insisting that his rules did in fact protect the principle of an open Internet. This was, of course, nonsense, but it’s notable that he felt so pressured by what was, at the time, the outrage of unconnected advocacy groups and regular folk that he felt it necessary to do damage control.

What followed was two weeks of protracted anger that ultimately led to Senator Al Franken throwing his relative weight behind net neutrality supporters, and soon after, to a slew of web and tech companies joining him with an open letter to the FCC. The result: Wheeler attempted a face-heel turn with the tepid revisions now available for public comment.

What’s interesting is that Wheeler even met with pro-Net Neutrality groups prior to yesterday’s vote. Where previously he was almost dismissive of complaints, the fact that he is now trying desperately to maintain the fiction that he remains on the side of Open Internet activists is promising.

But beyond Wheeler’s tentative willingness to bend before public opinion, there’s also the very real possibility that among the Democratic faction of the FCC, currently the majority, there is support for far more robust protections of Net Neutrality, and indeed, they may in fact be counting on public outcry to make that happen.

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It’s Not Just Wheeler

So Wheeler is apparently more flexible than feared. Great! But we still must fear that his ultimate loyalty lies with his former cable industry employers. Fortunately, he’s not the only vote in the FCC, and that creates cracks that can be exploited.

The 5-member commission is comprised of 3 Democrats and 2 Republicans. A simple majority of 3-2 is all that is required to move proposed rules to public comment, and eventually make them law. Interestingly, the Republicans, opposed to any regulation of the Internet (we can save the discussion of whether or not a hands-off approach would even work for another time), voted against moving the proposal to public comment. This suggests they will likely also vote down any final proposal. Meanwhile, Wheeler’s fellow Democrats – Commissioner Mignon Clyburn and Commissioner Jessica Rosenworcel – voted with him. That’s disappointing on the surface, but examining what they’ve said about the proposed rules is heartening.

According to several reports, it was the input of Rosenworcel and Clyburn that contributed to Wheeler taking criticism seriously enough to consider even a limited revision. And while neither commissioner has stated it outright, one cannot help but draw the conclusion that they’ve voted to move discussion forward precisely because they expect public outcry to continue to be overwhelmingly opposed to a tiered Internet. The evidence can be seen in what they’ve said prior to yesterday’s vote.

Earlier this month Commissioner Rosenworcel requested a delay in bringing the current proposal to public comment. And as The New Republic notes, as it turns out she doesn’t actually endorse the current proposal, appearing instead to favor much stronger rules. Meanwhile, Commissioner Clyburn has taken a stronger stance. In a post for the official FCC blog written May 7, Clyburn repeated the objections he had to rules proposed in 2010 which were struck down earlier this year by a Federal court. Stating that he “would have applied the fixed rules to mobile services,” that he opposed tiered access to the Internet, and that an open Internet should be available “to all end users, he also “reiterated my preference regarding the Commission’s legal authority over broadband Internet access service.” That preference all but comes out in favor of the best means of securing Net Neutrality: reclassification of broadband Internet as a utility (more on that shortly).

Clyburn is joined in support for that framework by an increasing number of major players. Just for one example, Congressman Henry Waxman said on Wednesday that if the FCC goes on to pass new rules that attempt to avoid reclassification, and federal courts again strike them down, the commission should simply use its authority already and just reclassify.

Most importantly, the Notice of Proposed Rulemaking (NPRM) for the proposed changes includes the possibility of revisiting classification: “We seek comment on whether the Commission should rely on its authority under Title II of the Communications Act, 295 including… whether we should revisit the Commission’s classification of broadband Internet access service as an information service.”

All of this is a ponderous way of saying that in the weeks since Wheeler attempted to slip a complete selling-out of the Internet past the people who use it, support for robust, and lasting means of protecting Net Neutrality has only grown. That is, unambiguously, promising news.

And that’s where we come in.

net neutrality hope-for-the-internet

What’s Next?

Put simply, now is the time for everyone reading this to freak the hell out. Politely and reasonably of course, but freak the hell out you must. I’m not saying panic, but something close to it should keep you motivated.

The FCC has now posted the the Notice of Proposed Rulemaking (NPRM) for Net Neutrality online. You can, and should read the whole thing here. We’ll be writing a longer breakdown of it soon, but for now it’s vital that you read it thoroughly and carefully to understand the proposals enough to competently discuss them.

Next, start reaching out to the FCC. The commission’s complete contact information
can be found here. It’s important to note that while email is the most convenient option, it is still, even in 2014, considered a relatively easy – and thus, noncommittal – way of contacting public servants, making it far easier to disregard. You should send email, but you should back it up with handwritten letters and even phone calls (the numbers provided at the above link are for information purposes only, but calling to speak with a representative can be surprisingly effective.)

You also need to start contacting your elected officials. Here is an easy way of locating your representative. But, and I say this with very little malice, not all representatives are created equally. Though I don’t intend to start a flame war, it must be noted that a sizeable contingent of congress is not remotely willing to support public opinion on this matter. If your representative is among them, it’s important that you call them, write email and write handwritten letters, and encourage as many of your likeminded friends to do the same as you can.

There are also numerous petitions floating around urging Congress and the President to back an Open Internet. The efficacy of petitions is debatable, but signing them can’t hurt. You can see some of them here, here, and here.

What should you say? While I stress you need to make up your own mind, the only solution that has the strongest chance of guaranteeing Net Neutrality is protected is for the FCC to reclassify broadband as a so-called common carrier, making it governable under the same rules telephone companies must follow (and, for that matter, very similar to airlines, highways and railroads). As noted above, the FCC itself is now inviting the public to weigh in on that possibility.

I previously discussed how the FCC has very weak knees when it comes to reclassification of ISPs as common carriers. The commission fears an enormous battle with telecoms and their supporters in congress, which is why they keep enacting these convoluted rules they hope will do the trick. But these rules keep getting shut down in the courts because, as we learned earlier this year, the FCC’s 2002 decision to classify ISPS like cable companies, instead of common carriers, means the commission has revoked its own power to effectively regulate the Internet.

Thus the current proposal is just as likely to be challenged in court as the previous rules, and just as likely to be struck down. And let’s face it: the Cable industry is comprised of total assholes. Wheeler may be their man, but I fully expect, as Congressman Waxler indicated earlier this week, that if these proposed rules are enacted, the Telecommunications industry will fight them as aggressively as they did the last, on simple principle. But of course, the FCC can fix this by un-revoking its authority to effectively regulate the Internet, which is why the best and most lasting solution is reclassification.

Of course the cable companies will fight tooth and nail over reclassification too. And so it is that many Congresspeople in the pocket of that industry will flip out, and we’ll then hear from them that protecting the public trust is on par with treason. But… so what? Congress can’t really do anything about it, unless they pass laws that specifically revoke the FCC’s authority entirely, and the President would have to sign them. See, as President Obama is so fond of saying when asked about this particular selling out of the public trust, the FCC is, at least ostensibly, an independent agency. It has the power and authority to reclassify without the approval of congress. And as for the possibility of a lawsuit? Again, so what? It is highly unlikely that a court is going to rule it illegal for the FCC to use powers it has specifically been given under the law.

The FCC can reclassify, tell congress to suck it, and take whatever heat comes. That heat will be largely political, which might be why the public is being invited to weigh in on the specific possibility of reclassification. If the citizenry and advocacy groups make support for this idea as visible as possible, it will make it harder for the FCC to refuse to consider it.

And on the other hand, if we cannot convince the commission to consider reclassification, we can at least have a decent chance of convincing it to go back to the drawing board.

Whatever you decide to say, now is the time to say it. The public comment portion of this process allows for 60 days of public comment, and another 60 days for the FCC to respond. Go forth then, and hold firm. The Internet depends on it.

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