by Tracy Rosenberg on February 28th, 2015
On February 26, 2015, the Federal Communications Commission reclassified broadband services (“the Internet”) under Title 2 ending blocking, throttling, paid prioritization fast lanes and enshrining digital equality and net neutrality as the law of the land on a 3-2 party line vote. The Commission also granted the petition from the cities of Wilson, North Carolina and Chattanooga, Tennesse striking down state laws preventing the expansion of municipal broadband networks.
Who Did It?
You did. In one of the biggest grassroots people-powered movements of the 21st century (so far), 4 million people wrote, commented, rallied and stopped the corporate takeover of the Internet. You crashed the FCC servers (twice), rallied through snow and sleet and sunshine (California winter) and never relented even when it looked like there was no chance the former head of the cable and wireless lobbying association would ever hear us.
Make no mistake. This didn’t happen on the beltway in a chamber filled with people in suits. It happened because the people would not take no for an answer. It didn’t happen because professional activists wrote action alerts. It happened because you spoke from your heart about what communication and connection means and what it makes possible in every social change movement from Black Lives Matter to Immigration Justice to Raising The Minimum Wage. And what it makes possible in every human life when the ability to share across distance and divides knits us together in community.
Will It Stick?
Media Alliance has heard from a lot of you worried this isn’t real. Let’s address a few of those myths.
The new rules haven’t been published. How do we know they say what the FCC is claiming they do. What is in those 300 pages we haven’t seen?
What is in the 300 pages, which will shortly be published in the Federal Register, is a line by line analysis of Title II regulatory code, originating in the 1934 Communications Act and most recently updated in 1996. Nineteen years ago, the Internet was not what it is today nor is the definition of a common carrier as applied to landline telephones entirely applicable to the massive telecoms and cablecos of today.
In order to give us strong net neutrality rules, the FCC is drawing on the foundation of Title 2, but forbearing on a number of outdated regulatory codes. The 300 pages are a lengthy and detailed description of exactly what applies and what doesn’t.
But we know from the summary provided that the central net neutrality issues of content blocking, throttling (slowing down), paid prioritization (fast lanes on the Internet) will be upheld and placed, for the first time, on a solid basis that will introduce no jurisdictional or authority problems for the Commission.
Will the Cablecos and Telecoms Go To Court?
You can probably take it to the bank that that the big corporations will go to court to try to overturn the new rules. In fact, AT&T already said so. (AT&T: “We’re going to sue the Government”, Feb 4, 2015 CNN). But the courts already told the FCC they could protect the open Internet by reclassifying providers as common carriers and reclassifying the Internet as a telecommunications service. They just couldn’t do it without reclassification, as the FCC tried to do in 2010.
It’s not even a partisan issue. Despite the thumpings coming from the Republican congress, in 2005 when Brand X vs NCTA went to the Supreme Court, rightwing icon Antonin Scalia joined Justices Souter and Ginsberg in a vigorous dissent saying it was “implausible” the provision of Internet connections was not a telecommunications service governed by Title 2. Scalia accused Michael Powell’s FCC of “attempting to concoct a whole new regime”.
That’s what we thought.
So the short answer is yes, they will go to court and no, they are not likely to win in the long run. It’s important to state for the record that Sprint went on the record supporting reclassification, the biggest provider to do so to date,
Will the Republican Congress Overturn The New Rules?
The attempt to pre-emptively limit the FCC’s jurisdiction prior to the passage of the new rules was a big failure with Senator John Thune, chair of Senate Commerce conceding the day before the vote.
While there will almost certainly be an attempt at a legislative undermining of the new rules, Democratic support for Title 2 has greatly solidified in the past few months and polls show that between 2/3 and 3/4 of Republican voters also support strong net neutrality rules against blocking, throttling and paid prioritization. A presidential veto is likely through the end of 2016.
What Did We Learn?
In January of 2014, The LA Times informed us that “Net Neutrality Is Dead”. They suggested we bow to our corporate overlords, Comcast and Verizon.
That’s not what happened.
In October of 2014, the “hybrid” net neutrality plan proposed by the former cable and wireless lobbyist now heading the FCC, Tom Wheeler, persuaded many there was nothing to be done but to try to make the inevitable compromise as palatable as possible.
But the “Frankenstein’s monster” was quickly derided as #fakenetneutrality and died a rapid death. We didn’t split the baby.
Big thank yous are due to the three FCC commissioners, who have been under a vast amount of pressure as the DC hothouse shined brightly on them. You can thank them and you should. @TomWheelerFCC, @MClyburnFCC and @Jrosenworcel.