Grassroots efforts to save Net neutrality may be working

Activists have already swayed debate over the FCC's proposed rules. Now they plan to show up at FCC headquarters Thursday for the agency's meeting.

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Concerned Internet users want to make sure that the FCC and Congress hear them when it comes to keeping the Internet open and free.

Digital-rights advocacy group Free Press, other groups such as MoveOn.org, and mobile operator CREDO, which also has a social activist arm, have organized protests and phone and online campaigns to get the attention of regulators and elected officials in Washington, D.C.

In the latest move to draw attention to the issue, Free Press is organizing a public protest at 9 a.m. ET Thursday outside the Federal Communications Commission's headquarters in D.C., to coincide with the commission's open meeting where a new proposal to reinstate the FCC's Net neutrality rules will be considered. Hundreds of protesters are expected to show up to the rally and join the dozens of activists who have been taking turns since May 7 camping out in front of the FCC.

The protest will also continue online where the public is encouraged to contact congressional representatives and the FCC to support the adoption of strong Net neutrality rules.

It seems like the efforts thus far have had an effect as lawmakers, tech companies, and even fellow FCC commissioners have questioned FCC Chairman Tom Wheeler's proposal for reinstating Open Internet rules. On Monday, an FCC official confirmed that the chairman began circulating a revised proposal, which will be considered at Thursday's meeting. The Wall Street Journal was the first to report on the chairman's revised proposal.

But activists say more needs to be done to ensure the Internet is protected.

"Chairman Wheeler is feeling the grassroots pressure against his pay-for-prioritization proposal," Free Press CEO Craig Aaron said in the announcement for Thursday's protest. "He needs to abandon the flimsy and failed legal approach of his predecessors and reclassify Internet service providers as the common carriers they are. If preventing fast and slow lanes on the Internet is the goal, reclassification is the way forward."

What happened to Net neutrality?

In January, the FCC lost a court battle against Verizon in which its 2010 Open Internet rules were thrown out due to a legal technicality. Last month, Wheeler began circulating a proposal he had come up with to reinstate the rules. This proposal, the details of which have not been released publicly, created a public backlash as digital activists expressed concern that it didn't go far enough in protecting the Internet.

Specifically, instead of reclassifying broadband traffic as a public utility, which would give the FCC authority to regulate the Internet as a "common carrier," the FCC chairman decided to take a different legal tack that critics say not only necessitates weaker rules but will also fail in court.

The most controversial item that resulted from this approach is the notion that broadband providers could be allowed to create paid prioritization services. These services would allow broadband providers to charge Internet content companies, such a Google or Netflix, a fee for priority access on broadband networks to ensure that their traffic would arrive at its destination more quickly than traffic that has not been prioritized. This so-called "fast lane" raised the ire of activists concerned that smaller content companies would be priced out of the market and that it could raise prices for consumers.

Wheeler attempted on several occasions to clarify that he had no intention of giving broadband providers free rein to develop such services. He said his approach would put limits on these commercial arrangements. But activists say that without reclassifying broadband traffic, there is no way under the current law to ban fast-lane services.

Without reclassification, Net neutrality supporters say that whatever rules the FCC adopts to protect the Internet will likely suffer the same fate as previous attempts to do the same thing, which were struck down in court. Giving broadband the "Title II" classification as it relates to the 1996 Telecommunications Act would ensure the FCC's authority to regulate the Internet as a utility or a so-called "common carrier." This is important since the FCC's previous two attempts to establish rules of the road for the Open Internet were struck down in federal appeals court.

"In 2009, the previous FCC chairman knew that whatever rules the FCC imposed wouldn't hold up in court if the agency didn't reclassify broadband as Title II," said Becky Bond, political director for CREDO. "But he eventually took the more politically palatable option of not reclassifying and the rules ended up being thrown out in court earlier this year. We don't want that to happen again."

Reclassification as the way forward

Bond said that legal experts are in agreement that reclassifying broadband as a utility would settle this legal question once and for all. But it would surely ignite a major battle with the telecom and cable industries, which have essentially kept their broadband infrastructures free of regulation for more than two decades. All of that would change if broadband is reclassified as a utility. It would then be regulated under the same types of rules that govern the telephone network. Telecom and cable companies say this would stifle innovation and dampen investment in broadband at a time when even more investment is needed.

Wheeler has not ruled out reclassifying broadband as an option. But it's clear that he isn't eager to take up this politically charged battle. In his blog posts and public talks regarding his proposal, he has emphasized that Title II reclassification is "still on the table." It appears he sees the threat of Title II reclassification as enough to keep broadband providers in line.

Sensing that the FCC was likely caving to the same pressures from deep-pocketed broadband companies, Net neutrality activists rallied support among the public. Organizations like CREDO started phone and online petitions. Nearly 310,000 people have signed CREDO's online petition. And since its efforts began, CREDO said, more than 1,000 phone calls have been made to the FCC, more than 3,300 calls have been made to US senators, and more than 1,400 to US representatives.

The campaign has worked to rally support within Congress and among business leaders. In a letter sent to the FCC on Friday, 11 US senators said the only way to make sure that the new rules, which will keep the Internet open and ban paid prioritization services, stand up to court challenges is to reclassify broadband as a Title II service. Under the current classification, the senators said, any rules that tried to do this would be overturned in court again.

Activists have also garnered the support of big technology companies. Last week, nearly 150 technology companies including, Google, Microsoft, Facebook, Amazon, Twitter, and Yahoo, wrote a letter to the FCC asking the agency to ensure the Internet remains open and free.

Bond said she is confident that Wheeler is listening to these concerns. The FCC chairman's revised proposal, which will ask if paid prioritization services should even be permitted, is a start. The revised proposal will also look at whether broadband traffic should be reclassified as a telecommunications service, subjecting broadband to the same regulation as a public utility like the telephony network. The chairman will also allow an alternative proposal submitted by Mozilla to be considered alongside the FCC's own proposal. In its proposal Mozilla suggests a path toward reclassifying broadband services.

What's next?

Bond admits that the concerns and issues surrounding Net neutrality are no different from what they were in 2010 when the previous FCC passed the rules that were eventually struck down. Back then, Net neutrality supporters expressed their disappointment in the strength of the rules.

But now, she said, the public is energized to stand up and make sure the new rules go further to protect the openness of the Internet. And now, she said, the FCC and Congress appear to be listening.

"We absolutely think this is a fight we can win," she said. "This time people are wiling to fight in a way they weren't willing to in 2010. People realize what is at stake now. And they don't want the Internet turning into Comcast."

 

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