The Net Neutrality State of Play

More than a million citizens have contacted the Federal Communications Commission (FCC) demanding genuine network neutrality. We know a healthy democracy demands an Open Internet. Last week the President of the United States also weighed in against a fast-lane/slow-lane Internet. Two conclusions stand out: (1) no new arguments have been ginned up by the big Internet Service Providers (ISPs) like Comcast, Verizon and AT&T that lend a whit of credibility to their entrenched opposition to strong net neutrality rules; and (2) growing grassroots support for a truly open Internet is commanding attention at the highest levels of government.

By word and by deed the big guys are only digging themselves in deeper. Verizon, for example, argued in a filing with the FCC that paid prioritization schemes “should be permissible and should be tested in light of consumer demand rather than resolved through regulatory wrangling.” They would have us believe that if they get the OK for differentiated fast lanes and attendant gate-keeping, they will make it work for consumers. Haven’t we heard that one before—like when the FCC deregulated cable modem and telecom broadband? My cable and broadband bills went way up; I suspect yours did, too. Consumer-friendly? I don’t think so.

Now Verizon is arguing that “reasonable network management” of their system means the company should be able to throttle its “unlimited” data transmission to customers by slowing down data speeds on their 4G LTE wireless networks. I saw first-hand as previous FCCs gave industry carte blanche to decide what is reasonable. Without some commonsense rules of the road, that is a sure-fire recipe for consumer abuse. And any new net neutrality rules that permit companies to invoke “commercially reasonable” as the gold standard by which to judge Internet openness would be both a farce and a menace. As I—and citizen action groups like Public Knowledge, Free Press and Common Cause (where I lead the Media & Democracy Reform Initiative)—have long argued, the glory of the Internet is not what it does for big ISPs; it is what it does for people. The Internet is increasingly home for the news and information we get, home for how we educate ourselves, how we debate and advocate and organize as citizens of a self-governing nation.

Huge telecom and cable companies that would have us believe that their interests on the Internet trump ours are on the wrong side of both history and democracy. It is hubris at best and greed at worst to argue that the communications infrastructure we are all so dependent upon should be exempt from rules of the road that ensure its potential to serve the needs of citizens. The fight being waged here, my friends, is not over arcane technicalities. No, this battle is about whether a privileged few will be allowed to undermine the democratic potential of the most dynamic communications network ever invented.

In spite of all this, the smart talk around town is that the Chairman of the FCC is still looking for “net neutrality lite” rules that would avoid a huge battle with Comcast, Verizon, AT&T, and their friends in Congress. Such rules would keep broadband away from the consumer protection section of the law (Title II) where telephone service has always been and permit loopholes like “commercially-reasonable” fast lanes, creating an Internet for the few at the expense of the many.

There are two huge problems here. One is that net neutrality lite doesn’t get the job done. Two is that a huge fight will ensue no matter how the FCC rules. These companies—and, believe me, I have seen it up-close—lobby to get the best deal they can, and then they take whatever the FCC approves to court anyhow. Certainly that’s what happened with the network neutrality lite rules that the previous FCC approved. The court overturned those rules—but with delicious irony (not that anything in this debate can be called tasty), the court opined that if the FCC wanted to do genuine net neutrality, it should have rested its case on Title II. So we already know that Title II classification is a surer route to court approval. It is a foolhardy soul who thinks he or she can predict how courts will eventually rule on appeal or when the Supremes do their thing. But this statement, coupled with court precedent and traditional deference, is a powerful incentive for the Commission to do the right thing.

There is an old adage: justice delayed is justice denied. Justice toward the Internet, justice for democracy, says: act strongly and act now. If this FCC tries, like the previous one, to conjure up some new and novel approach grounded again in the wrong part of the telecommunications statute, it means more years of legal wrangling and more attempts later on to write rules—except that during all this time, we will have no open Internet rules. And the ISPs and their business allies will have more years to consolidate, to merge, to acquire, and to hone their practices of gate-keeping. That’s a death sentence for the open Internet.

A final decision is expected to take some weeks, perhaps a few months—longer than the in-crowd once believed. Our job is to put this time to good use. Let’s begin by asking the FCC to put its time to good use. The Commission has announced a series of workshops to discuss and debate the issue … in Washington, DC! The FCC already gets an earful from Washington lobbyists. An Inside the Beltway process raises the odds of an Inside the Beltway decision. How much better it would be for the entire Commission to get outside the Beltway and hold a series of real public hearings across the land to hear from the citizens who have to live with the decisions the agency makes.

So ask the FCC to do that. Then share your thoughts on net neutrality with the FCC. Comments are still being accepted. You can also send your thoughts via Common Cause. Those one million comments were an awesome start, but realize that the pressure needs to keep building to a crescendo as the Commission plans its next move. So talk about this with family, friends, colleagues, and anyone who will listen. Write about it. Go to those town hall meetings your elected representatives hold and tell them how important an Open Internet is to you. Let the White House know, too. These are the kinds of actions that fuel good outcomes and make for real reform. And they are what is needed here.

Even in this era, when big money and special interests wield such outrageous power, we the people can still be heard. We can win, too.