The Activists Won: FCC Chairman Proposes Strongest-Ever Protection of Internet Freedom

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For a while there, FCC Chairman and former cable and wireless lobbyist Tom Wheeler looked as if he was going to bow to his old paymasters on net neutrality, but Wednesday he did a 180 and announced the “strongest open Internet protections ever proposed.”

Wheeler says he plans to use Title II authority (more on that in a moment) to mandate freedom across wired and wireless networks. If passed, it means no more throttling (for legal activity), no more private taxes on video providers such as Netflix, Google and Amazon, and a guarantee that sites like ours can continue to operate with the same level of access to users as corporate giants.

The battle for net neutrality is about keeping the Internet the way it has historically operated, which is to say open and indifferent. Cable companies and wireless providers desperately want to be able to boost their profits by controlling traffic with more discrimination, creating fast and slow lanes for Internet traffic and charging a toll for speedy delivery. (There are other reasons for them to discriminate, but this is the primary consideration right now.)

The FCC has long held the power under Title II of the Communications Act to reclassify broadband Internet providers as common carriers. That would essentially apply the same openness standards of telephone networks to broadband cable and wireless networks. But the commission has been loath to take such a step.

Former FCC Chairman Julius Genachowski passed a compromise order that was ultimately thrown out by a judge who suggested that the FCC instead use its more obvious and appropriate Title II authority. That’s what some corporations, such as Google, and Internet freedom activists, like those at Free Press, wanted; but it was more hope than reality.

Hours after President Barack Obama came out strongly for net neutrality, Wheeler met with business leaders from major companies and said he was going to go in a different direction, repeatedly saying, “I am an independent agency.” That’s according to a Washington Post report in November. The president reiterated his call for net neutrality during his most recent State of the Union address, and Wheeler seems to have come around.

Here’s what the chairman himself had to say about the evolution of his thinking:

Originally, I believed that the FCC could assure internet openness through a determination of “commercial reasonableness” under Section 706 of the Telecommunications Act of 1996. While a recent court decision seemed to draw a roadmap for using this approach, I became concerned that this relatively new concept might, down the road, be interpreted to mean what is reasonable for commercial interests, not consumers.

That is why I am proposing that the FCC use its Title II authority to implement and enforce open internet protections.

Using this authority, I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC. These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply—for the first time ever—those bright-line rules to mobile broadband. My proposal assures the rights of internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission.

Free Press is one of the organizations leading the fight on this issue, and posted the following on its site: “Make no mistake: If the FCC votes for Title II at its meeting on Feb. 26, it will be a watershed victory for activists who have fought for a decade to protect the open Internet.”

Wheeler acknowledged in his statement that the public played a role in his thinking. Before making changes in regulation, it’s protocol for the FCC to invite public comment. This issue prompted the most public comments ever — about 4 million.

There are two obstacles yet to overcome. First, the FCC must vote to approve Wheeler’s proposal. There is staunch opposition there to net neutrality. Also, at this moment Congress is maneuvering to strip the FCC of the power to reclassify providers under Title II. That’s where President Obama and his power of the veto come in.

Whatever happens, Feb. 4, 2015, is the day former industry lobbyist Tom Wheeler caved to Internet activists.

— Posted by Peter Z. Scheer