Note: This week we will find out what the FCC is considering for its new rule on the future of the Internet. They will vote on the rule at the end of the month. All indications are they will reclassify the Internet under Title II of the Federal Communications Act and put in place net neutrality rules. The net neutrality movement will be looking at these proposals carefully to see whether there are any loopholes to protect the interests of the telecoms. If there are we will focus attention on the FCC before the final rule is voted on to close those loopholes, if not the focus will be on the cable companies and Congress to ensure they do not thwart the will of the people who favor net neutrality by super majorities.
For more on this campaign see our newsletter: A Case Study in People Power.
The FCC is Moving Toward Reclassifying the Internet as a Common Carrier with strong Net Neutrality Rules, the Telecoms Oppose Them, but Momentum is with the Activists
President Obama supports new rules that if passed will regulate the internet like water and electricity – telecoms and Republican politicians do not
For more than three decades Kevin Zeese has been a burly, vociferous presence on the front lines of protest movements. The 59-year-old Baltimore native has organised protests against the Iraq war, run for the Senate on the Green Party ticket, and campaigned for drug law reform since the 1970s. Now he’s fighting to save the idea of an open internet. Never has he seen the arguments over such a hot-topic issue shift so quickly in his direction.
Last May, Zeese was thrown out of an Federal Communications Commission (FCC) meeting, as the regulator looked set to pass new rules that among other things would have allowed cable companies to create and charge extra for “fast lanes” and end net neutrality – the principle that all traffic should be treated equally online.
This week, FCC commissioners will start discussing a new set of rules for regulating the web that could ban fast lanes. That ban would be part of a set of rules that, if passed, will regulate the internet in the similar way to utilities like water or electricity – a move net activists have been dreaming of for decades, believing it will allow the regulator to better protect net neutrality. The change in tone has been swift and dramatic and it even caught Zeese by surprise.
Cable companies have long challenged the FCC’s authority to regulate them. The latest attempt to rewrite the FCC’s rules came last January, after Verizon successfully challenged its authority to regulate the broadband industry. Rich, powerful and well connected, cable companies are used to getting what they want. A couple of years ago at a fundraiser at the home of David Cohen, Comcast’s chief lobbyist, President Barack Obama quipped: “I’ve been here so much, the only thing I haven’t done in this house is have seder dinner.”
Even the FCC – or perhaps that should be especially the FCC – appears to be in cable’s pocket. Chairman Tom Wheeler used to be president of the National Cable & Telecommunications Association (NCTA), Big Cable’s lobbying group. The current chairman of the NCTA is Michael Powell … formerly head of the FCC.
Against such powerful opponents Zeese, co-director of pressure group Popular Resistance, looked underpowered. He used old-school methods to make his point, camping outside the Washington office of the FCC, badgering Wheeler at his home, blocking his drive and forcing him to take the subway to work, organising protests outside the White House.
But while the physical protests were mainly small affairs, behind him was an army of online activists so massive that after comedian John Oliver called on protesters to email the FCC in support of net neutrality, they crashed the regulator’s servers.
Spurred on by online activists including Fight for the Future, a six-person team that has managed to coordinate protests with people and companies including Reddit, Netflix, Mozilla and PornHub, people have now submitted more than four million comments on the FCC proposals. A topic many had dismissed as boring and wonky has proved more controversial than Janet Jackson’s nipple – the singer’s accidental exposure during the Super Bowl in 2004 triggered a then record 1.4m comments to the FCC.
“Often these campaigns are generational. Look at gay marriage or marijuana. This was different, it’s been so fast,” said Zeese. “Having an open internet has made a huge difference. That’s why we fought so hard.
Verizon’s victory was a dark day for open-internet activists. Big Cable appeared to be on the brink of ending net neutrality. The court victory meant the FCC no longer had the authority to stop internet service providers (ISPs) blocking or “unreasonably” discriminating against services.
After the decision, Netflix emerged as the poster child of blocking. The company had its service slowed by ISPs as they negotiated fees – a move Oliver described as having “all the ingredients of a Mob shakedown”. Perhaps unsurprisingly, Netflix founder Reed Hastings has become the tech industry’s loudest proponent of net neutrality. That spinning wheel many customers have dreaded while waiting for House of Cards or other Netflix shows to load has become a powerful avatar of what activists say is at stake in the debate.
The rules now likely to be brought before the FCC would give the regulator the power to oversee broadband under Title II of the communications act of 1996, giving it far greater authority over the industry and the power to ban “throttling” – deliberately slowing internet traffic.
There is still a long way to go. The five FCC commissioners will vote of the proposal on 26 February and ahead of the meeting, lobbying for changes will be intense. In the meantime, in Congress, Republicans are working on a bill that would undermine the FCC’s plans.
But even there the debate has shifted. Last year Fred Upton, Republican chairman of the House committee on energy and commerce, called net neutrality “a solution in search of a problem”. The more cantankerous Senator Ted Cruz called it “Obamacare for the internet”. Now the Republicans too support net neutrality. The bill under discussion would also ban blocking or “throttling” of web traffic and prohibit the creation of paid “fast lanes” – even if it would also defang the FCC.
“How is it that such a powerful corporate lobby, one that invests tens of millions of dollars in lobbying, is losing this debate so quickly?” asks Tim Karr, senior director of strategy for Free Press, a New Jersey-based public advocacy group. “I think the answer is that it has taken a decade.”
‘The strongest possible rules’
Internet activists have coalesced around net neutrality after a series of skirmishes. Activists began worrying about net neutrality in 2005, when the US supreme court ruled against a move to force cable companies to share their infrastructure with ISPs such as Brand X and EarthLink. The FCC, then overseen by Powell, joined with the cable companies in opposing the challenge.
An alphabet soup of acts then came before Congress, from the Communications Opportunity, Promotion and Enhancement (Cope) Act of 2006 to the Stop Online Piracy Act (Sopa) of 2014. An unlikely band of activists came together to protest what they saw as attempts to push through legislation which would restrict their freedom of expression online. The Christian Coalition of America and Gun Owners of America opposed Cope, for example, alongside the liberal nonprofit Common Cause.
By the time the latest spat came before the FCC, Karr argues, net activists had sharpened their tactics and raised their game.
“They had been successful at killing bills but not very successful at creating new rules,” he said.
With net neutrality, that appears to have changed. Activists haven’t just lobbied to kill a bill – they have specifically pushed for Title II. It has worked. In November Obama, who has always been a champion of net neutrality but had never thrown his weight behind specific legislation to protect it, also came out for Title II, calling on the FCC to enact the “strongest possible rules” to protect an open internet.
The president’s speech caused outrage in the cable community. The National Cable and Telecommunications Association (NCTA), which represents cable companies including Comcast and Time Warner, said it was stunned by the president’s proposals.
The industry remains deeply unhappy at the way the debate has shifted. Speaking off the record, one broadband executive said the industry had widely been supportive of net neutrality and the debate had been mischaracterised.
“We have been on the record for years supporting no blocking, no throttling. The net activists have made this a debate about Title II,” he said.
Everything changed after the Obama’s midterm election defeat, he said. “Obama wanted to reset his liberal credentials,” the executive said. “It became clear to everyone as soon as Obama weighed in that Wheeler had no choice.”
But Title II will not get activists what they want, the executive said. If and when the FCC brings in its new powers, they will inevitably end in court.
‘This is about big-picture stuff’
Professor Christopher Yoo of University of Pennsylvania Law School, a well known net neutrality skeptic, said politics had played a large part in the cable companies inability to take on their opponents. Obama had chosen to enter the fray “less to promote a serious discussion and more to send a political signal,” he said.
But he argued that other factors are at play – not least the controversial proposed merger of cable’s two largest players, Comcast and Time Warner, which is now under review by the FCC. Taking on the FCC during that review might not work in their favor.
“Their primary goal is get that merger done,” Yoo said. “One of the most seditious aspects of the FCC merger review is its chilling action on the participants in the [net neutrality] debate.
“People in the industry are generally quite weary of the net neutrality debate. It’s been going on for a decade. A substantial part of the industry would like to get this resolved and move on.”
But Title II is unlikely to do that, he argues. The telecommunications act was last overhauled almost 20 years ago. The FCC has suggested it will “forebear” parts of the act, in order to allow ISPs greater freedom, but tighter regulation will inevitably hamper innovation, he argues.
“Everyone loves the internet for its permissionless innovation. The government is slow – for good reasons. By its very nature government does not work on internet time,” he said.
Yoo said he hopes Congress will step in and legislate before this “mess” is passed.
Congress may well step in. Republican senator John Thune is currently working on legislation that would trump the FCC’s moves. Obama would no doubt block it but he will not be in office forever.
When and if the GOP’s net neutrality rules come to the floor, the net activists will be ready. From her home office in Boston, Evan Greer, campaign director for Fight for the Future, said she was under no illusion that the war was won and that she expected some backlash from the successes they had scored in this battle.
“I wouldn’t be surprised if there was a move to try and limit the tactics we’ve used to organise online,” she said. “Whenever a tactic of protest becomes effective, there are often attempts to limit it.”
But she is confident the internet will be behind her when the next skirmish starts.
“This is about big-picture stuff,” she said. “It’s about freedom of expression, freedom of ideas. People will fight for that.”