What a Difference a Year Makes in the Network Neutrality Debate

At this time in 2014, we reported on the controversy surrounding the Federal Communications Commission’s imminent release of proposed rules to ensure an Open Internet. Many feared the rules FCC Chairman Tom Wheeler would propose could allow Internet service providers to charge for faster, better access to consumers. Our question on May 9, 2014: “Will the uprising of opposition be enough to convince Chairman Wheeler to change course?” Well, what a difference a year makes. History was made by unprecedented, grassroots activistism and a FCC leader willing to listen and the courage to change his mind. Today our weekly round-up takes us back to where we were one year ago.

The Day Wheeler’s Open Internet Proposal Died

On May 7, 2014 writing right here for Benton’s Digital Beat blog, former Federal Communications Commission Chairman Michael Copps said, “Just about everybody understands the Internet to be the most opportunity-creating tool of our time. The question now is opportunity for whom? Is the Net going to be the tool of the many that helps us all live better -- or will it be the playground of the privileged few that only widens the many divides that are creating a shamefully stratified and unequal America? Are we heading toward an online future with fast lanes for the 1% and slow lanes for the 99%? Well, it’s decision time. Now.”

Now indeed. Chairman Copps’ op-ed was published on the same day a number of citizens, companies and policymakers stood up and said “No” to current FCC Chairman Tom Wheeler’s latest proposal for Open Internet rules.

At a meeting of the Chief Officers of State Libraries Agencies meeting in Washington (DC), FCC Commissioner Jessica Rosenworcel spoke mainly, and appropriately, about the Commission’s efforts to “reboot, reinvigorate, and recharge” the E-rate program which offers discounted telecommunications services for schools and libraries. But she also expressed that she has “real concerns about FCC Chairman Wheeler’s proposal on network neutrality.” The proposal has been a hot topic for the last two weeks even though the Commission will not officially ask for public comment on the proposed rules until May 15. May 8 marks what’s referred to as the “Sunshine Period” for any items the FCC is to consider – that means the FCC can no longer accept new public comment on an item on the FCC’s meeting agenda until after the item has been voted on. With a torrent of public response, Commissioner Rosenworcel thinks it is a bad time to stop considering public reaction. Recognizing the complexity of previous court rulings on FCC Open Internet rules, Commissioner Rosenworcel also called on the FCC’s legal team to publicly answer questions about “what is before us.”

In sum, Commissioner Rosenworcel said, “I think we should delay our consideration of his rules by at least a month. I believe that rushing headlong into a rulemaking next week fails to respect the public response to his proposal.”

Commissioner Rosenworcel's call got quick support from Congress. “I think she has a very good point. The Chairman had a vote scheduled on the proposal for May 15, that’s in a handful of days,” said Rep. Anna Eshoo (D-CA), the ranking member of the House Telecommunication Subcommittee. “So unless all of the commissioners can really absorb the comments people are emailing in, or registering over the phone, I think she has a very good point.”

On May 7, FCC Commissioner (and former interim Chairwoman) Mignon Clyburn also released a statement expressing concerns with the Wheeler proposal. She noted that “Over 100,000 Americans have spoken… tens of thousands of consumers, companies, entrepreneurs, investors, schools, educators, healthcare providers and others have reached out to ask me to keep the Internet free and open.” She noted her four concerns with the Open Internet rules adopted by the FCC in 2010 and since remanded by the DC Circuit Court:

• I made clear that I would have applied the fixed rules to mobile services.
• Second, “I would have prohibited pay for priority arrangements altogether.
• I would have made an open Internet available to all end users and encouraged the FCC to carefully monitor whether the exceptions in the Order jeopardized the principle that an open Internet truly is available to everyone.
• I reiterated my preference regarding the Commission’s legal authority over broadband Internet access service. While the Order adopted a different framework, I believed it was necessary to move forward to protect an open Internet.

On May 6, FCC Commissioner Michael O’Rielly wrote an op-ed for The Hill saying “The notion of preserving an ‘Open Internet’ is so vague that any rules meant to accomplish that goal could unintentionally impact edge providers’ business models.” He concludes that the FCC should “wait for Congress to provide the FCC with direction on how we should regulate, if at all, the networks and services of the digital age.”

On May 8, FCC Commissioner Ajit Pai released this statement: "I have grave concerns about the Chairman’s proposal on Internet regulation and do not believe that it should be considered at the Commission’s May meeting. Instead, I believe that the Commission should focus for the next week on getting the rules for the incentive auction right."

Given the simple math that Chairman Wheeler needs three votes to launch consideration of his Open Internet proposal and four of the five FCC commissioners voiced strong concerns about it this week, one would guess that the new proceeding is dead on arrival. But Shannon Gilson, a spokeswoman for Chairman Wheeler, said that he intends to go ahead with his planned introduction of a proposal. “Chairman Wheeler fully supports a robust public debate on how best to protect the Open Internet, which is why he intends to put forward his proposals for public comment next week,” Gilson said. “Moving forward will allow the American people to review and comment on the proposed plan without delay, and bring us one step closer to putting rules on the books to protect consumers and entrepreneurs online.”

On May 8, the FCC confirmed that it will consider a Notice of Proposed Rulemaking addressing the DC Circuit Court of Appeals’ remand of portions of the Commission’s 2010 Open Internet Order and proposing enforceable rules to protect and promote the open Internet at the May 15 meeting. But the FCC also announced that strict enforcement of the Sunshine Period prohibition on comment would place an unnecessarily restrictive burden on the public, who should have full opportunity to express their views. Therefore, the Commission is waiving the Sunshine Period prohibition until 11:59 pm on May 14, 2014 with respect to this proceeding.

Consumers and FCC Commissioners aren’t the only ones making noise about Wheeler’s proposal. On May 7, nearly 150 Internet firms called for more stringent network neutrality regulations on broadband providers. In a letter to the FCC, the companies asked the regulators to reconsider Wheeler’s proposal that critics fear would allow Internet providers to charge for faster, better access to consumers. The list of companies includes Amazon, Facebook, Google and Microsoft, along with dozens of other firms that called the prospect of paid fast lanes "a threat to the Internet." "Instead of permitting individualized bargaining and discrimination," the companies wrote, "the Commission's rules should protect users and Internet companies on both fixed and mobile platforms against blocking, discrimination and paid prioritization, and should make the market for Internet services more transparent." The companies have not gone so far as to demand the FCC "reclassify" Internet providers under Title II of the Communications Act — a move that would allow the Commission to regulate ISPs more heavily, as it does with phone companies. The letter does not offer an alternative proposal.

On May 8, nearly 50 venture capitalists -- including Ron Conway, GigaOm founder Om Malik and reddit co-founder Alex Ohanian -- wrote to the FCC, too, arguing that small startups would be harmed by Wheeler's proposed rules. "If established companies are able to pay for better access speeds or lower latency, the Internet will no longer be a level playing field," the letter reads. "Entrepreneurs will need to raise money to buy fast lane services before they have proven that consumers want their product. Investors will extract more equity from entrepreneurs to compensate for the risk." What's more, the letter warned, investors themselves might be deterred from backing new projects if they believe Internet providers see a threat in a new company. "They will use the same technical infrastructure to advantage their own services or use network management as an excuse to disadvantage competitive offerings," the VCs wrote.

Writing for the National Journal, Ron Fournier compared our current time and debates to the Gilded Age:

Maybe that political revolution has already started. Maybe the protests against the Stop Online Piracy Act and maybe the actions this week are signposts that policymakers can no longer ignore.