Tomorrow, the Federal Communications Commission (FCC) will release its order aimed at “preserving and promoting the open Internet,” more commonly known as net neutrality. Everyone gets that this is a big deal and here’s why: For the past twelve years, net neutrality has been an unenforceable idea that the owners of the “last-mile” broadband infrastructure Internet traffic travels over should not leverage that ownership to discriminate against or in favor of particular traffic.
On Thursday, the FCC will enshrine that principle in actual rules placed on the strongest legal foundation available under the Communications Act: reclassification of broadband as a Title II telecommunications service.
The day before the FCC takes this momentous step, the House of Representatives Energy & Commerce Committee will steal some of its thunder by convening a hearing on “The Uncertain Future of the Internet.” The hearing’s title implies that the Internet currently operates under regulatory certainty. It doesn’t. For at least ten years, the FCC, courts, Internet service providers (ISPs), edge providers, and advocates have stumbled and fought over fundamental questions like whether a residential ISP can block or throttle certain types of traffic and what, if anything, the FCC can do about it. And we still don’t have a clear answer.
Under Chairman Martin, the FCC tried to address this exact scenario through its ancillary authority. It failed. Under Chairman Genachowski, the Commission tried to address similar practices under its Section 706 authority. It failed. Title II reclassification will finally provide a straightforward basis for the Commission to act if an ISP blocks or throttles Internet traffic or if it prioritizes traffic in exchange for payment.
Opponents claim that the FCC wielding that authority will result in a more heavily regulated Internet in which network investment and innovation will suffer. Not all major broadband providers agree with that assessment. T-Mobile and Sprint both recently shrugged off investment-related concerns and other major ISPs have given different answers when speaking to different audiences. And nearly every major ISP has said they have no intention of engaging in the blocking, throttling, or paid prioritization that the rules seek to prevent.
Sure, Title II reclassification will force the FCC to wrestle with some thorny issues: What privacy protections should broadband subscribers have? How do we best support the deployment of broadband to underserved areas of the country? Do interconnection agreements or practices between networks interfere with a consumer’s ability to get the broadband service she paid for? These are hard questions, but asking them is the FCC’s job. And asking them does not lead inexorably to regulatory heavy-handedness.
There are those who claim net neutrality has grown more partisan in recent years, while net neutrality advocates suggest the issue is bipartisan. Of course, there’s more than one way to ask a question and more than one way to get the answer you’re looking for. If you want a net neutrality supporter, ask someone if she favors allowing ISPs to charge edge providers for a “fast lane.” If you want an opponent, call open Internet rules a “tax on the Internet.” This exercise will tell you more about polling than public sentiment about net neutrality.
It’s a different matter entirely when people tell you what they think in their own words. More than four million people weighed in on the FCC’s proceeding and, according to an analysis by the Sunlight Foundation, the vast majority of non-form-generated comments support the FCC taking action. Of course, the FCC comment database isn’t a voting machine and the only majority that will matter on Thursday is the likely 3-2 vote of Commissioners in favor of adopting the net neutrality order. However, it’s hard to ignore four million comments, and public engagement on this issue extends well beyond the FCC’s official docket.
A recent Berkman Center study concludes that the “networked public sphere played a central, arguably decisive role” in moving the FCC toward reclassification. While some may be concerned about the FCC making that move, it would be far more disturbing if the FCC did nothing and ignored the unprecedented public engagement and support expressed primarily via the Internet.