Left: Photograph from July 1, 2014 ‘musical’ held outside the FCC , “Which side are you on, Tom?” showing the conflict between the people and the ‘fat cats’ Comcast, Verizon and AT&T. The people must mobilize to convince Chairman Tom Wheeler to reschedule the Internet as a common carrier. This requires us to defeat the big financial interests that want to force corporations to pay for priority service and create a tiered Internet based on fees.
TAKE ACTION NOW as the time for public comments is running out. We ask you to sign onto the Popular Resistance formal comments to the FCC published below. We will file it on July 15.
[emailpetition id=”9″]
In addition, please submit your personal comment at www.FCC.gov/comments in proceeding number 14-28. Tell your own story about how the Internet is important to you and why you support net neutrality. The deadline for this round of public comments is July 15, 2014. Urge the FCC to reschedule the Internet under Title II to ensure there will be no discrimination and equal access for all.
Popular Resistance urges the FCC to reclassify the Internet Under Title II as a Common Carrier so real net neutrality rules can be put in place and we can be assured that the Internet will remain an Open Internet with equal access for all and no discrimination. Only in this way can the full potential of the Internet be realized.
Summary
This is not the time for expedience or for working within the confines of what is perceived as politically possible. This rulemaking is about the future of the most important communication tool in history. The Internet already has tremendous economic, social, cultural and political impact and will have an even greater impact in all of those areas in the future.
It is time to decide what is right for the Internet, what is necessary to make the Internet the most effective tool possible for humanity. When the FCC defines what is necessary for the future of communication, then what is politically possible will change. As the FCC can see from the hundreds of thousands of comments it has received, people will rally and mobilize to protect the Internet. If the FCC takes effective action to serve the public’s interest, it will have more political power than it currently perceives.
For the FCC to make a decision about the future of the Internet it needs to do more than accept written public comments, it needs to hear from the American people directly. Therefore, we urge the Commission to hold public hearings in multiple regions throughout the country that allow people to fully express their views on this important issue. There is no substitute for hearing from the people directly in regional hearings.
What is that action? The Internet should be a public service that facilitates communication and innovation. It should be a public utility regulated in the public interest without discrimination based on wealth or content; and with equal access to all. This should be true whether it is accessed by a computer or a telephone or any other device that is created in the future. This requires the FCC to reclassify the Internet as a telecommunications service that serves as a common carrier, without discrimination, with codification of real net neutrality.
I. The FCC Should Reclassify the Internet under Title II; Broadband Providers Should Be Common Carriers
We urge the FCC to:
- Reclassify the Internet as a telecommunications service so that providers are a common carrier under Title II.
- Put in place rules that ensure the Internet remain open, with equal access and free of discrimination, i.e. real net neutrality.
- Put in place rules that allow for public or municipal ownership of Internet providers.
The Internet has become the primary means of communication for the people of the United States and the world. It is the greatest mass communication tool in history. The Internet is the venue for the exercise of Freedom of Speech in the 21st Century.
The Internet has been essential in making major strides toward the democratization of mass communication, allowing people to create new forms of media including independent, citizens and social media networks. This has expanded the marketplace of ideas so more voices can be heard and people are not dependent on mass media owned by a handful of corporations.
The future role of the Internet in democratic governance has yet to be explored in any depth. The potential for the Internet includes much greater participation by people in decision making by government. Elected representatives will be able to use it to hear the views of the people they represent to enhance representative democracy so it is more participatory. It also has immense potential for direct democracy where people are able to decide specific issues beyond representative democracy. The Internet needs to not only be an “Open Internet” but one where there is no discrimination and equal access for these potentials to be realized.
The Internet is also a source for creativity and economic innovation and entrepreneurship that allows for new ideas to compete with established institutions. There needs to continue to be access for new ways of using the Internet so the next Upworthy, Twitter, Facebook, reddit, Wikipedia or Kickstarter does not have additional financial barriers preventing their growth.
The Internet is integral to the marketplace. Businesses of all sizes rely on the Internet to promote their goods and services. In addition, a growing number of people rely on the Internet each year to locate the goods and services that they require. Not only is the Internet the marketplace of ideas, it is America’s marketplace.
The Internet is also a necessary tool for activities of daily living. It is used to manage bank accounts, investments and pay bills, sign up for utilities and other services and find answers to questions about everything from how to do repairs to parenting to . . . well . . . anything you can think of.
And the Internet is a fundamental tool for communication. It is a major source for news and information about current events. People use it regularly to keep in touch with friends and family around the world.
The Internet has become interwoven into all aspects of people’s lives, an essential tool for hundreds of millions of Americans and billions of people throughout the world. The only way to provide equal access for all is to treat the Internet as a common carrier where no discrimination is allowed. This is the essence of net neutrality.
Popular Resistance is an advocate for economic democracy, i.e. an economy where people have greater control over their economic lives. For this new economy to succeed equality of access to the Internet is essential. The poorest must have access to the Internet in order to participate in the economy and leverage their talents and creativity into productive economic activity.
We also advocate for a more robust democracy that is not based solely on “representative” democracy but participatory and direct democracy. The instant communication of the Internet can make it easier for representatives to know what their constituents want so they can more accurately represent their views. The United States is in the early stages of participatory governance, with cities across the country beginning to experiment with participatory budgeting where the people actually decide how tax dollars are spent, they do not merely advise, but actually decide. As this experience grows, it is easy to imagine the Internet playing an important role in participatory governance. Finally, direct democracy, which includes voter initiatives and referenda, can also benefit from the Internet, e.g. there is great potential for collecting signatures to put issues on the ballot and even for voting online. For the Internet to reach the full potential of greater democratic governance there must be equal access for all without discrimination. The quality of Internet access cannot be based on fee-based tiers, the Internet must be neutral.
The future of the Internet must protect these qualities as there continues to be the need and opportunity for unpredictable growth and unpredictable innovation. Innovation and growth that can only be achieved by an open Internet with equal access for all and without discrimination based on wealth.
Reclassification of the Internet as a telecommunications service under Title II of the Communications Act would give the FCC authority to protect an open Internet once and for all by classifying providers as common carriers. The courts have made it clear that the FCC has the authority to reclassify and that it can only achieve net neutrality by treating the Internet as a common carrier. The people have shown they care about the future of the Internet to be a political powerhouse to ensure the Internet is a common carrier – if the FCC makes the right decisions.
The FCC needs to mandate net neutrality by reclassification and prohibit discrimination based on fees and paid prioritization. This rule should apply to both fixed and mobile access to the Internet. The FCC also needs to remove all barriers to municipal and public ownership of the Internet.
II. The FCC Has the Legal Authority to Reclassify Under Title II
The courts up to and including the US Supreme Court, have said the FCC has the authority to reclassify the Internet under Title II as a common carrier and that doing so is the only way to forbid any discrimination and ensure net neutrality. The courts have presented a roadmap to net neutrality, and that roadmap requires as its first step reclassification.
Administrative agencies have broad authority under the law to make decisions within the scope of the law. Under the Administrative Procedure Act, an agency’s actions will be upheld unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Courts have consistently held that this means that unless an administrative agency acts unreasonably its decision will be upheld.
In National Cable & Telecommunications Assn., Inc. v. Brand X, 545 U.S. 967 (2005) where the court upheld the classification of the Internet as an information service, the court found that Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) was the controlling law when it comes to regulating the Internet.
Chevron requires a federal court to defer to an agency’s construction, even if it differs from what the court believes to be the best interpretation, if the particular statute is within the agency’s jurisdiction to administer, the statute is ambiguous on the point at issue, and the agency’s construction is reasonable. Chevron set the bar very low for deference to an agency, the court will uphold the agency decision merely if it is “a reasonable policy choice for the agency to make.”
The court also cited an FCC case for the proposition that where a statute’s plain terms admit of two or more reasonable ordinary usages, the Commission’s choice of one of them is entitled to deference by the courts. See Verizon Communications Inc. v. FCC, 535 U.S. 467 (2002).
As with the current situation, the FCC has broad authority because the statute is ambiguous on the issue. So, even though there was a prior construction of the statute, that does not trump Chevron. The court found that prior construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.
Adding to the strength of the FCC in reclassifying the Internet under Title II was the dissenting opinion issued by Justice Scalia in Brand X which was joined by Justices Souter and Ginsburg. They dissented because they found the classification of the Internet as an information service to be unreasonable. They believed the Internet should be classified under Title II as a common carrier. The crux of the issue for the dissenters was that the Internet transmits information of the users without changing the form or content of the information transmitted. This is a fact that seems obvious on its face and for the dissenters required classification under Title II.
The reason the operation of an open Internet is being reconsidered is because of the US Court of Appeals decision in Verizon v. FCC, No. 11-1355 (DC Circuit, January 14, 2014). The court found that key provisions of the FCC’s open Internet rule could not be upheld because the FCC went beyond its statutory authority. Central to the court’s decision was the failure of the FCC to classify broadband providers as common carriers under Title II:
“Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.”
Therefore the task of the Court of Appeals was to “determine whether the requirements imposed by the Open Internet Order subject broadband providers to common carrier treatment. If they do, then given the manner in which the Commission has chosen to classify broadband providers, the regulations cannot stand.” The court determined that some provisions were akin to treatment as a common carrier but because of the classification as an information service under Title I, rather than as a common carrier under Title II, the regulations were beyond the FCC’s authority.
When Congress updated the Communications Act, Internet providers were classified as common carriers. The Verizon court pointed out: “Congress clearly contemplated that the Commission would continue regulating Internet providers in the manner it had previously” and noted “the Commission’s long history of subjecting to common carrier regulation the entities that controlled the last-mile facilities over which end users accessed the Internet.”
The task of the FCC in this rulemaking decision is different. Because of the Verizon decision, the FCC must now confront the question: Are broadband provider’s common carriers? As well as to determine the policy question, is common carrier status the best path for the future of the Internet? The Commission correctly answered the second question when it promulgated open Internet rules. The Internet should behave as a common carrier because that provides a truly open Internet, with equal access for all without discrimination and this is best for innovation, entrepreneurship, and communication in the 21st Century.
As to the first question: are broadband provider’s common carriers? It seems evident from the definition of common carrier that they are. In Interstate Commerce Commission v. Baltimore & Ohio Railroad Co., 145 U.S. 263, 275 (1892), the Supreme Court defined a common carrier writing: “the principles of the common law applicable to common carriers . . . demanded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable.”
As the court in Verizon wrote: “the basic characteristic that distinguishes common carriers from ‘private’ carriers—i.e., entities that are not common carriers—as ‘[t]he common law requirement of holding oneself out to serve the public indiscriminately.’ ‘[A] carrier will not be a common carrier,’ we further explained, ‘where its practice is to make individualized decisions, in particular cases, whether and on what terms to deal.’”
In BrandX, Verizon and Comcast v FCC, 600 F.3d 642 (D.C. Cir. 2010) the courts have provided a roadmap for the FCC if it wants to achieve an open Internet where there is equal access to all without discrimination. To achieve true net neutrality there is only one path, the FCC must reclassify to achieve that goal. There is no other path to ensure an Internet free of discrimination. Thus the FCC must reclassify broadband providers as telecommunication services that are common carriers; and classify mobile broadband as a “commercial” mobile service, not a “private” mobile service.
Conclusion
The FCC has the legal authority to do what is essential to protect the Internet and ensure it remains an engine of mass communication and innovation unlike any other tool in human history.
To fully understand the importance of the Internet to the American people we urge the Commission to hold hearings throughout the country in multiple regions so people can speak to you directly. These hearings should be formulated so that people have the opportunity to tell you why the Internet is important to them and why they favor rescheduling as a common carrier to ensure net neutrality.
The public interest demands that there be equal access to the Internet and the only path to achieving that is to reschedule the Internet as a telecommunications service under Title II of the Communications Act and to require that broadband providers be treated as common carriers, whether involving fixed or mobile access to the Internet. This will allow the FCC to put in place open Internet rules that ensure net neutrality.
Kevin Zeese
Margaret Flowers
On behalf of Popular Resistance
Popular Resistance is an online daily news and information service for people who want to play a role in improving the country, creating economic and social justice as well as to protect the environment. In our first year of operation more than 3 million people visited Popular Resistance. Our work, and the work of thousands of others, would not be possible under an Internet that prioritized websites based on fees paid for faster service. This would result in discrimination and unequal access to the Internet and severely weaken the democratization of mass communication, undermine our Freedom of Speech and stifle innovation.