-- by John Nichols, The Nation
America was always going to have a great debate about net neutrality.
Cable and telecommunications companies stand to reap billions if the Internet’s guarantee of equal protection for all communications is scrapped. Without net neutrality protections, they would be freed to create a pay-to-play Internet where they could charge corporations and special-interest groups to provide high-speed service, while consigning websites without benefactors to a digital dirt road.
That’s too lucrative a prospect for the profiteers to give up on.
By the same token, millions of Americans recognize that, if net neutrality is compromised, they will lose what is best about the Internet—its infinite variety, its affordability, its openness and freedom. And democracy activists know, as well, that without net neutrality another media platform will be colonized by the economic and political elites that have already narrowed and warped the national discourse.
So the battle lines have been drawn for a long time.
Now, the battle begins.
On Thursday, the Federal Communications Commission voted 3-2 to formally open the latest stage of that debate. That is all that has happened. But, for defenders of net neutrality, the significance cannot be underestimated. This really is the period in which the future of the Internet will be decided.
Commissioner Mignon Clyburn made that point when she told the crowd of net neutrality supporters who gathered for the vote that, "The real call to action begins after the vote today. This is your opportunity to formally make your points on the record. You have the ear of the entire FCC. The eyes of the world are on all of us."
Clyburn was emphasizing the vital importance of public input to support maintaining a free and open Internet.
That input must be directed, in particular, toward the Democratic majority on the commission. And it must argue for a specific strategy: reclassification of Internet providers as “telecommunications services” that can be regulated in the public interest.
It is a mistake to think that the Democrats are on the same page. While they share some basic premises, they have important differences with regard to the approach the commission should take.
What the three Democrats agree on is this: the FCC has a role to play in defining net neutrality. That distinguishes them from the two Republican appointees, whose “no” votes were intended to say that this issue should be resolved by the US House and the US Senate—where the influence of the telecommunications conglomerates is great.
The Democrats are right to believe that the issue can and should stay with the FCC.
The Democrats do not appear to be in agreement, however, on how the FCC should resolve the net neutrality debate.
FCC chair Tom Wheeler, a former industry lobbyist appointed last fall to a Democratic seat by President Obama, created a firestorm when he proposed to establish an Internet fast lane that would favor free-spending corporations and special-interest groups, while discriminating against those who cannot pay to play. Wheeler’s assault on net neutrality, has been met with determined opposition from Americans who want to maintain honest competition and a democratic discourse in the digital era.
The opposition has been so broad, in fact, that Wheeler tinkered with his initial proposal in hopes of easing the outcry and securing support for his response to court rulings that have required the FCC to revisit issues of Internet speed and access. He got that support Thursday from Democratic commissioners Clyburn and Jessica Rosenworcel.
But both Clynburn and Rosenworcel expressed reservation about Wheeler's approach. And rightly so.
The official line from the FCC, in anticipation of the Thursday vote, was that Wheeler's revisions “clearly reflects public input the commission has received” and that Wheeler is now “explicit that the goal is to find the best approach to ensure the Internet remains open and prevent any practices that threaten it.”
Wheeler had felt the heat. His revised approach—which the commission has now approved for consideration—contains some of the language of critics, and expresses an openness to debate about what a growing consensus among responsible members of Congress and advocacy groups says is the right response to the issue: the reclassification of Internet providers as “telecommunications services."
But Wheeler never moved as far as the official pronouncements suggests. Indeed, according to The Wall Street Journal, despite the talk of “tweaks” to the initial plan, the chairman “is sticking to the same basic approach.”
An analysis from Matt Wood, a public interest lawyer who formerly worked with the Media Access Project and now works with Free Press, concludes that the revisions proposed by Wheeler “fall far short.” Indeed, argues Wood, “Unless the chairman reverses his fundamentally failed approach, we won’t have real net neutrality—and we will have rampant discrimination online.”
Wheeler has not reversed course.
Now, with the commission vote to open debate on how to maintain net neutrality, there will be many efforts to fuzz the margins of the debate. Some corporate interests will attack net neutrality itself, as will their congressional allies. Savvier players will attempt to suggest that Wheeler is trying to “strike a balance.” But a balance with Internet “fast lanes” and “slow lanes” is tipped against citizens and consumers. And that’s the problem with Wheeler’s revision—and, as such, with the core plan that the commission will consider. For all the talk of progress, Michael Weinberg, vice president of the advocacy group Public Knowledge, says he and his group remain “concerned that the FCC is considering some kind of paid prioritization.”
“Paid prioritization” would recreate the Internet as a place where, potentially, there would be superhighway service for big-ticket customers and dirt roads for small businesses, creative artists and citizen groups. In a political context, it has the potential to narrow access to ideas and reduce the range of debate. As the American Civil Liberties Union warns:
Profits and corporate disfavor of controversial viewpoints or competing services could change both what you can see on the Internet and the quality of your connection. And the need to monitor what you do online in order to play favorites means even more consumer privacy invasions piled on top of the NSA’s prying eyes.
That’s the fundamental fear of activists, who have contacted the FCC urging rejection of Wheeler’s flawed initiative. Ironically, citizens who phoned the agency this week to express support for a free and open Internet were urged, because of the overwhelming volume of calls, to use the Internet to communicate their objections. Of course, a top objection is that, if Wheeler gets the commission to undermine net neutrality, the effectiveness of the Internet as a tool for challenging corporate abuses and bad policies will be undermined.
To keep the flow of communications going to the FCC, Vermont Senator Bernie Sanders, a net neutrality advocate, created a special form on his Senate website for citizens to use. On Tuesday, his office delivered nearly 19,000 new comments to the agency. They were added to hundreds of thousands of communications to the commission from net neutrality supporters.
Wheeler misread things when he imagined that Americans are interested in compromising when it comes to net neutrality—that, beyond the corridors of corporate and political power, there is a constituency for surrendering a little bit of Internet freedom here, a little bit of Internet openness there. There’s no popular enthusiasm for creating a pay-to-play Internet. Americans in growing numbers recognize that once net neutrality is undermined, the Internet will no longer be free and open.
The simple, right and necessary response to the whole question of how to maintain net neutrality is to reclassify broadband Internet access as a telecommunications service that can be regulated in the public interest. Indeed, as media reformers note, “The FCC can’t prevent online discrimination and blocking unless it reclassifies broadband providers as common carriers.”
While Wheeler and his aides say they will accept some discussion of reclassification, Broadcasting & Cable magazine reports that the chairman sees the use of existing rules—rather than reclassification—as the “effective path forward.”
That is a mistake.
And it is a mistake that must be countered by opponents, whose most important work on the issue of net neutrality begins now.
“Millions of people have put the FCC on notice. A pay-for-priority Internet is unacceptable," explained Free Press president Craig Aaron. "Today, both Commissioners Mignon Clyburn and Jessica Rosenworcel stated that they support prohibitions on paid prioritization and other forms of unreasonable discrimination. Tom Wheeler spoke passionately about the open Internet, but his rousing rhetoric doesn't match the reality of his proposal. The only way to accomplish the chairman’s goals is to reclassify Internet service providers as common carriers."
“The Commission says it wants to hear from the public; it will be hearing a lot more. This fight will stretch into the fall, but there’s one clear answer: The American people demand real net neutrality, and the FCC must restore it."
Reclassification is clearly an option.
When a clumsy previous attempt by the FCC to establish net neutrality protections was rejected in January by the US Court of Appeals for the District of Columbia, the court did not say that the commission lacked regulatory authority—simply that it needed a better approach. As David Sohn, general legal counsel at the Center for Democracy & Technology, has noted, the court opinion laid out “exactly how the FCC essentially tied its own hands in the case, and makes it clear that the FCC has the power to fix the problem.”
“The Court upheld the FCC’s general authority to issue rules aimed at spurring broadband deployment, and accepted the basic policy rationale for Internet neutrality as articulated by the FCC,” explained Sohn. “The arguments in favor of Internet neutrality are as strong as ever, but prior FCC decisions on how to treat broadband have painted the agency into a corner. Those decisions are not set in stone, however, and the ball is now back in the FCC’s court. The FCC should reconsider its classification of broadband Internet access and re-establish its authority to enact necessary safeguards for Internet openness.”
That’s what the message that will be delivered by net neutrality defenders.
Recent days have seen new expressions of opposition from members of the Congressional Progressive Caucus, newspaper editorials, democracy advocates, forward-looking businesses and artists. On Tuesday, rockers like Tom Morello, the Rage Against the Machine guitarist who is now playing with Bruce Springsteen; Aerosmith’s Joe Perry; Pink Floyd’s Roger Waters; Pearl Jam’s Eddie Vedder; and REM’s Michael Stipe; along with Hip-Hop pioneer Davey D, songwriters Neko Case and Erin McKeown and the contemporary-classic innovators of the Kronos Quartet, all signed an open letter to Tom Wheeler and the Federal Communications Commission declaring:
The open Internet’s impact on the creative community cannot be overstated. The Internet has enabled artists to connect directly with each other and with audiences. It has eliminated the barriers of geography and taken collaborations to new levels. And it has allowed people—not corporations—to seek out the film, music and art that moves them.
Allowing broadband providers to control this once-open platform shifts power away from individual artists and creators and interferes with freedom of speech and expression. Unless the Commission restores strong nondiscrimination protections based on a solid legal framework, creativity, cultural commerce and free expression will suffer.
Your proposed path would open the door to widespread discrimination online. It would give Internet service providers the green light to implement pay-for-priority schemes that would be disastrous for startups, nonprofits and everyday Internet users who cannot afford these unnecessary tolls. We urge you to scrap these proposed rules and instead restore the principle of online nondiscrimination by reclassifying broadband as a telecommunications service.
The FCC does not need to have a tortured debate about trying again to do what has failed in the past.
It can reject wrongheaded proposals and destructive “compromises” and pursue the reclassification option.
The point of beginning ought to be with an “unwavering commitment” to maintaining net neutrality. That’s not a radical stance. In fact, it is the stated position of FCC member Clyburn.
“There is no doubt that preserving and maintaining a free and open Internet is fundamental to the core values of our democratic society, and I have an unwavering commitment to its independence,” argues the commissioner, who has been an FCC member since 2009.
That’s the smart starting point, as is Clyburn’s argument that the January decision by the DC Circuit Court of Appeals to reject the commission's previous approach to net neutrality not as a crisis but as opening to get things right. “Unlike many,” explains Clyburn, “I actually see this remand as a unique opportunity for us to take a fresh look and evaluate our policy in light of the many developments that have occurred over the last four years.”
Clyburn and Commissioner Rosenworcel have offered indications that they are not happy with Wheeler’s approach. Rosenworcel said Thursday that "I believe the process that got us to this rulemaking today is flawed. I would have preferred a delay. I think we moved too fast to be fair."
She did not get her delay. But she can now assure flawed process does not lead to a flawed decision to undermine net neutrality.
There is no space for compromise on that point.
The notion that a debate about net neutrality might find some digital common ground where some pay-for-prioity “fast lanes” would be allowed is rooted in a misunderstanding of how net neutrality works. Any final plan that allows for Internet “fast lanes” and “slow lanes” does not alter net neutrality; it ends net neutrality.
What is needed is a clear commitment to reclassification, rooted in recognition that “a free and open Internet is fundamental to the core values of our democratic society.” If the three Democratic appointees to the commission—Clyburn, Rosenworcel and Wheeler—make that commitment, they can move quickly and responsibly to maintain net neutrality.
Reclassification is not complicated. But it is necessary.
Minnesota Senator Al Franken explains the calculus well.
“To my mind, you have to say that internet is telecommunications. That’s all you have to do. That’s the response to [court rulings that require a better plan from the FCC],” says Franken. “So you say, it’s telecommunications, and then the FCC has the power to enforce Net Neutrality and continue to try to solve network management problems and we continue to have the kind of innovation that we’ve had, that has made the Internet what it is.”