How net neutrality proponents beat Comcast and the GOP
Up next? David v. Goliath.
The battle over net neutrality has been going on since before Columbia professor Tim Wu coined the term in 2003. But it didn't reach the national zeitgeist until June 1, 2014.
That's the night that John Oliver's Last Week Tonight hit its stride, and net neutrality broke into the public consciousness — went viral, even. Oliver's pointed explainer on net neutrality and call to arms has been viewed more than eight million times, it prompted a flood of four million almost entirely pro–net neutrality comments to the Federal Communications Commission, and it's so good it's worth watching again:
On Thursday, barring a last-minute surprise, the proponents of net neutrality will score a major victory: The FCC will vote, 3-2, to reclassify broadband internet as a (Title II) public utility, specifically like telecommunications companies, giving the commission the authority to make sure broadband providers treat all internet traffic on an equal footing, or at least apportion bandwidth fairly and reasonably. Wired and wireless internet providers won't be able to slow down or block legal content online.
It has been a long, winding road to reclassification — and it's an unlikely victory for net neutrality proponents.
The FCC could have done this at any point, starting from when it chose to classify broadband as a more lightly regulated "information service" in 2002. Two previous FCC commissioners tried to enforce net neutrality, and large broadband companies took them to court and won. In the most recent judgment, in January 2014, Judge David S. Tatel, writing for a three-judge panel of the U.S. Court of Appeals in Washington, ruled that the FCC was relying on regulatory powers it doesn't have — but gently suggested that the commission could achieve its laudable goals by simply reclassifying broadband as a "telecommunications service."
Net neutrality advocates were disheartened, then, when new FCC Chairman Tom Wheeler — a former top lobbyist for the cable and wireless industries, no less — responded to Tatel's ruling by proposing rules in April 2014 allowing special "fast lanes" for internet services willing to pay for them.
Also that month, at a meeting in the New York City offices of Tumblr, lawyer Marvin Ammori warned the dozen or so internet companies present that if the FCC didn't enforce net neutrality, it could prove fatal to smaller companies and internet startups. He gave the firms legal talking points, advised them on how to talk to government officials, and in May, spoke with a researcher for John Oliver's Last Week Tonight.
At the same time, The Wall Street Journal reports, two White House officials — R. David Edelman and Tom Power — were working in secret to build a strong case for tougher net neutrality rules, "acting like a parallel version of the FCC itself." When cable and telecom CEOs called higher-ranking White House officials last year to lobby Obama against new regulation, they "got nowhere," The Journal says.
A day after a mildly contentious July 2014 meeting between Wheeler and smaller web firms at Etsy's New York offices, Tumblr CEO David Karp serendipitously found himself next to Obama at a New York fundraiser, and Obama passed Karp's concerns down to Edelman and Power, according to The Journal. Karp and the CEOs of Etsy, Kickstarter, and Vimeo made their case to Obama officials in an Oct. 21 meeting at the White House.
Meanwhile, in mid-October, The New York Times reports, "the tech activist group Fight for the Future acquired the direct telephone numbers of about 30 FCC officials, circumventing the agency's switchboard to send calls directly to policymakers." The group collectively logged 55,000 phone calls before ending the barrage on Dec. 3.
In November, about a week after the midterms elections and four days after a White House official generally warned Wheeler that the president was going to publicly lay out his own net neutrality vision, Obama urged the FCC to reclassify broadband as a public utility, reportedly blindsiding FCC officials and derailing months of Wheeler's work on another compromise proposal.
In a Feb. 4 editorial in Wired, Wheeler outlined his own proposal for "the strongest open internet protections ever proposed by the FCC," using a light-touch version of Title II authority.
Reclassifying broadband still wasn't a done deal. Comcast, which is also trying to buy its closest competitor, Time Warner Cable, spent $17 million on lobbying last year, down slightly from $18.8 million in 2013 — and much of that went toward trying to avert new broadband regulation. The National Cable & Telecommunications Association was just ahead, spending $17.5 million on lobbying in 2014.
Comcast donated to and spent money lobbying both parties, but Republicans tried to stop the FCC, especially after Obama backed Title II reclassification. Sen. Ted Cruz (R-Texas) called net neutrality "ObamaCare for the internet," and House Speaker John Boehner (R-Ohio) — the largest recipient of Comcast donations — said Obama's plan would "destroy innovation and entrepreneurship."
But the GOP effort to derail the FCC effectively ended on Tuesday, with Sen. John Thune (R-S.D.) conceding that Democrats wouldn't support any legislation before the FCC voted on its new rules. Small- and medium-sized internet companies, open-internet groups, and thousands of supporters ramped up their own low-budget lobbying earlier this month, and "Republicans have grown much quieter under the barrage," The New York Times notes.
The fight will now move back to the federal courts. Both sides are publicly confident that they will prevail. Net neutrality may well make it to the Supreme Court.
Just about everyone in the fight says they want the internet to stay pretty much as it is now. But for consumers, says David Lazarus at the Los Angeles Times, "the only question here is whether you trust the phone and cable industries to act in the best interests of consumers, or whether you think a little adult supervision is required to make sure the internet remains a level playing field for all content providers."
For now, the "adult supervision" team is the winner, much to its surprise. "We've been outspent, outlobbied," but "it looks like we've won," Mozilla Foundation's Dave Steer tells The New York Times. "A year ago today, we did not think we would be in this spot."
As they say, see you in court.