Last spring, when I reported a long story on net neutrality, there seemed to be only one sensible resolution to the American Internet’s crisis.
But, source after source told me, the U.S. government would never pursue it.
The crisis: The broadband industry wanted to establish a fast lane and a slow lane for the Internet. Companies would have to pay for access to the “fast lane”—potentially preventing startups from competing with extant tech behemoths. Such a plan threatened “net neutrality,” a core tenet of the Internet, which held that net providers didn’t care about whose content they fed through their proverbial pipes.
The solution: “Title II reclassification,” a mouthful of words to describe a fairly simple concept. In 2002, the Federal Communications Commission had chosen to regulate certain types of broadband as an “information service,” a media product, and not a “telecommunications service,” a piece of infrastructure. In other words, the FCC treated cable, DSL, and fiber-optic Internet like it would a TV station or newspaper, not a public utility like the phone system.
The FCC kept trying to preserve both net neutrality and its weirdo regulatory choice to treat the Internet like a media service, not a utility. And every time, courts said it wouldn’t work. If the FCC wanted to actually protect net neutrality, it would have to reverse its old regulatory decision. It would have to regulate the Internet as a utility—that is, in legal parlance, under the authority granted to it in Title II of the 1934 Telecommunications Act.
Whew. So. Today, FCC Chairman Tom Wheeler announced in a post at Wired that he is taking that step—a step that, only a year ago, seemed politically unfeasible.
“I am proposing that the FCC use its Title II authority to implement and enforce open internet protections,” he wrote:
Using this authority, I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC. These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply—for the first time ever—those bright-line rules to mobile broadband.
“Getting Title II back went from impossible to politically feasible in less than 12 months—which is a super fast pace by D.C. standards,” said Matt Wood, the policy director for net-neutrality advocacy group Free Press in an email to me.
This is a staggering turn. When I last wrote about the topic in mid-May, it seemed the FCC would permit a limited fast and slow lane scheme. Then the winds began to shift. In June, John Oliver exhorted his viewers to write to the FCC in defense of net neutrality, and they did so in droves, crashing the agency’s servers. By the fall, more than 4 million people had submitted public comments on the topic, overwhelmingly in support of stronger rules to protect net neutrality.
Then, in November, President Obama announced that he, too, supported Title II reclassification. Advocates cautioned that his support was important—it showed that the administration was prepared to defend the agency in court—but that it ensured nothing. The FCC is an independent body, and its chairman (who was appointed by Obama) was an old lobbyist for the cable industry.
Reports trickled out: Yes, the agency was seriously considering Title II reclassification. The New York Times, with the tepid assurance befitting the paper of record, reported Monday that the FCC was “expected to propose regulating Internet service as a utility.” But it sourced its story to “industry analysts, lobbyists, and former FCC staff members.”
But now there is today’s promise, from the FCC chair, that cable industry lobbyist himself: that the Internet should be regulated as the landline phone system was. That Internet service is a utility. “It was a combination of everything: good legal arguments coupled with popular and political support—and public outcry any time it looked like the FCC hadn't quite gotten the message yet,” Wood told me.
“The Obama statement on Title II on November 10th wasn't the beginning of a process, it was sort of the culmination of one. And Chairman Wheeler deserves tons of credit for taking this next step,” he added.
Of course, the particulars here are in the details, and we won’t know those until the full FCC report comes out later this month.* What will likely follow is a lawsuit between major cable companies and the FCC—but a lawsuit was going to follow no matter what, as the cable industry has always fought the FCC’s attempts to ensure net neutrality.
The FCC has always lost those suits, historically: Judges have said it didn’t have the legal authority to ensure net neutrality while it was regulating the Internet like a newspaper (and not like a utility). It was the most recent of those suits that brought about the current legal crisis the agency is now trying to resolve. Now that it has gone and reclassified its regulation, it will find both better legal grounds and possible allies on the right and left.
It was conservative bulwark Justice Antonin Scalia, after all, who argued that the FCC’s failure to regulate the Internet as a utility was not only perplexing but illegal. The agency’s legal duty was to regulate, he wrote, but with its confusing rules it had instead established “a whole new regime of non-regulation, which will make for more or less free-market competition, depending upon whose experts are believed.”
And it is possible that Title II reclassification will become more partisan. A top Republican has already claimed Wheeler’s decision is “not about net neutrality,” but instead represents a “power grab for the federal government.” And Comcast has a vast, complex, and sophisticated lobbying operation.
But Comcast—and its industry brethren—are some of the most reviled companies in America. (Consider the recent Onion headline: “Nation’s Cable Companies Announce They’re Just Going To Take $100 From Everyone.”) And one of the most fascinating aspects of the net-neutrality fight is how often it has remained non-partisan.
Indeed, its advocates seem to have pulled off one of the more fascinating feats in recent American politics. They have created great public interest, formed a massive coalition, in and around a rules change by a federal regulatory agency.
Yet maybe that’s just another weird outcome of the weird political fact of the Internet. More than one writer today highlighted that Wheeler announced his commitment in Wired, the spiritual successor to the 1960s California movement that formed around the Whole Earth Catalog. The Whole Earth Catalog gave rise to much of the modern-day tech industry—Steve Jobs spoke frequently of it—and it promulgated a politics ardently pro-technological, pro-free speech, and peculiarly libertarian.
In other words, it never quite mapped onto Democratic or Republican politics. That its heirs would now support government regulation in order to protect free speech and technological competition seems more than fitting.
* This post originally stated that the policy proposal would be released to the public on Thursday, February 5. We regret the error.
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