Historic FCC Vote Casts a Wide Net: People Power Prevails--For Now

March 01, 2015

by Lauren-Glenn Davitian, CCTV, davitian [at] cctv [dot] org (davitian [at] cctv [dot] org)

Hopefully, by now you’ve heard of the historic decision by the FCC to reclassify the Internet as a “common carrier”-- requiring Internet Service Providers (ISPs) to offer service to the public and their competitors as if they were a freeway--not a private toll road. Our friends in the public interest community call the ruling a "triumph of the public interest over big money”. Conservative politicians and pundits see it as “Obamacare for the Internet”.

We agree with long-time open Internet lawyer Harold Feld’s assessment that:

“This is, overwhelmingly, the biggest defeat for vested interests I can recall in my 15 years working in this sector. It was against the conventional wisdom, over the united objections of every major industry constituency, without significant support from major industry players such as Google and Facebook or Microsoft. This is bigger than stopping SOPA/PIPA in 2012, because we actually pushed the FCC to do something affirmative, rather than just stopping Congress from making a giveaway to the industry.” (1)

Quick History: For more than 80 years, the FCC has regulated telephone and broadcasters in order to assure the broadest reach of communications technologies. Open access and universal service policies have been essential to promote widespread technology use and significantly contributed to our nation’s economic prosperity. But when both the telcos and the cable companies got into the new Internet business in the 1990's, the FCC, not sure how to regulate the new creature, made up an entirely new classification.

As an “Information Service”, Internet regulation lacked meaningful public interest protections and allowed the ISP’s to discriminate against content they did not own. Cable companies started to slow down connections for customers sharing video files with each other, and wireless companies tried to block their customers from using services like Skype and FaceTime. There were no requirements to stop them. But open media advocates began to make their voices heard and carefully, over many years and struggles, laid the groundwork for a national outpouring.

A Nation Moves: The problems with ISPs became so bad that the FCC, led by Obama appointee Tom Wheeler, was pushed to take action. Content providers (like Netflix), public interest advocates (like Free Press, Public Knowledge and countless others), and consumers (like the 4 Million people who submitted comments in favor of the Open Internet) let the FCC know that they were not happy, boiling their demands down to three conditions:

No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind -- in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.

On February 26, 2015, by a vote of 3-2, the FCC cast their historic vote to re-classify the Internet as a Title II “common carrier”, requiring ISPs to provide service to the public without discrimination, for (in the words of the 1934 Communications Act) the “public convenience and necessity”.

Lifting Municipal Ownership Bans: The FCC also voted to also pre-empt State law and open the door for two community-based broadband providers to expand service in Tennessee and North Carolina. State laws had effectively prevented their cities from expanding broadband service outside their current footprints despite numerous requests from neighboring unserved and underserved communities. This ruling is signficant because successful AT&T’s state by state campaign to prohibit municipally owned telecom companies made municipal telecom a dirty word in nearly half the country. (While it is not illegal in Vermont, even the Vermont Telecommunication Plan discourages municipal ownership.)

According to the Benton Foundation’s Charles Benson:

“Today’s FCC action could bring broadband service to communities where there is none and competition in areas where it does not exist. FCC Chairman Tom Wheeler recognizes that meaningful competition for high-speed wired broadband is lacking. To take advantage of today’s new services, and to incentivize the development of tomorrow’s innovations, Americans need more competitive choices for faster and better Internet connections. Today’s FCC action means that the broadband marketplace will have to be more responsive to competitive forces”. (2)

Read the reaction flowing in from across the country.

Impact on Consumer Privacy: The FCC’s 2/26 Ruling will have also have an impact on consumer privacy. The Los Angelese Times writes about how the Ruling could be “a game changer”, requiring ISPs to seek customers' permission before monitoring or sharing personal information. "Potentially, this could apply to every Web request you make," said Marc Rotenberg, head of the Electronic Privacy Information Center. "If the same safeguards that now apply to phone services are applied to broadband, this could have major implications for Internet service providers.” (3)

Privacy requirements of telephone companies to monitor how you use their services (outlined in Section 222 of the Communications Act) will now apply to Internet companies that make it a habit to collect data about your usage. "Clearly, where you go and what you do on the Internet qualifies as proprietary information under the law," said Ryan Calo, an assistant law professor at the University of Washington who specializes in Internet privacy. "This potentially covers a lot of ground." (3)

Other Benefits: The FCC Ruling also establishes A Standard for Future Conduct. ISP ‘s cannot “reasosonably interfere with or unreasonably disadvantage” the ability of consumers to select, access, and use the lawful content, applications, services, or devices of their choosing; or of edge providers to make lawful content, applications, services, or devices available to consumers.” ISPs may engage in reasonable network management--recognizing the need of broadband providers to manage the technical and engineering aspects of their networks. But the FCC specifies that, “network practice must be primarily used for and tailored to achieving a legitimate network management -- and not business -- purpose”. (4)

The FCC contends that the rules described above will restore the tools necessary to address specific conduct by broadband providers that might harm the Open Internet--including a requirement for broadband providers to disclose to consumers, in a consistent format, promotional rates, fees and surcharges, data caps, packet loss rates, and management practices that could affect service. (Exemptions are in place for fixed and mobile providers with 100,000 or fewer subscribers.)

What’s Next? Communications policy is like the ocean--in endless, triangulated movement between Congress, FCC and the Courts.

Congressional Republicans have been trying to pass a law to undermine the ruling, but that does not appear likely. Once the FCC ruling is fully digested, it is likely that the ISPs will move to the courts where they will argue that their first amendment right to provide unfettered content is at risk. The ISPs will claim that Internet traffic is a form of speech, and the ISPs that carry those messages are speakers. They will ask the courts to think of them as news organizations, conveying the stories and advertising that they choose.

(You may remember the cable operator’s free speech argument against proposals that they “must carry” local broadcasters on their systems: “You can’t make us carry the voices of other people because it interferes with our first amendment rights”. The cable operators lost that fight in the Supreme Court 1997, by a vote of 5-4.)

Noah Feldman professor of constitutional and international law at Harvard University: “If Internet service providers could persuade the courts to think of them as modern news disseminators, rather than as purveyors of a content-neutral commodity, that would bring to bear the full body of free-speech jurisprudence that the Supreme Court has developed over the last century.” (5)

In the best case, the lawsuits will delay the new rules until after the 2016 election. Then a new President less set on political control can appoint a new FCC and rewrite this effort “to subject this great engine of American innovation to the untender clutches of the same folks who brought you ObamaCare”. (6) While such a view is also held by The Wall Street Journal, which recently wrote (2/27) that “The FCC is grabbing political control over a vibrant market that until now has been driven by inventors and consumers."

There is currently very little Congressional traction against the FCC ruling. Philip Bump of the Washington Post reports that:

“The tagline meant to rebut neutrality -- "Obamacare for the internet"...never really caught on. Even during the week of February 23, as discussion heated up, it barely registered on Twitter. Rep Darrell Issa (R-CA) used the expression over and over -- but it still maxed out at 600 tweets in one day over the last 30 days. Net neutrality, on the other hand, was registering in the tens of thousands.” (7)

Craig Aaron, President and CEO of Free Press, celebrated the historic change in communication policy, attributing to the “relentless push from the grassroots”. A new political force has awakened...The real story here was dozens of public interest groups, new civil rights leaders and netroots organizers coordinating actions online and off, inside and outside Washington, who broke the FCC's website, jammed switchboards on Capitol Hill, and forged new alliances that are transforming how telecom and technology policy is made...But we've only just scratched the surface of what a well-organized Internet constituency can accomplish. Now we must figure out how to turn this exciting moment into a lasting political movement. (8)

But while we celebrate, it is essential to remember that fight to protect the public interest will continue, unabated in the Courts and in Congress. Technology is changing under our feet, and as John Laprise, assistant professor in residence at Northwestern University in Qatar reminds us that Internet-fueled companies have “a broader vision and seek a greater prize”:

While established telecommunications companies are committing their reserves of financial, legal and political power to stop the advance of new Internet companies in their tracks, Internet companies like Google, Facebook and Amazon are betting that demand for broadband along with consumer unhappiness with established telecommunications companies will fuel demand for alternate-connectivity, which they will directly serve customers with wirelss solutions. (9)

Stay awake! And keep the people power plugged in!

Special thanks to the Benton Foundation for compiling many of the articles used in this report.

(1) The FCC Is Gonna Give Me An Open Internet For My Birthday!! Tell Congress Not To Be Party Poopers | http://www.wetmachine.com/category/tales-of-the-sausage-factory/

(2)benton.org/headlines/fcc-grants-petitions-preempt-state-laws-restricting-community-broadband-north-carolina | Federal Communications Commission | The Verge | The Hill | Washington Post | ars technica and https://www.benton.org/blog/benton-salutes-fccs-move-bring-more-fiber-more-communities-sooner