Historic moment for Internet freedom

While the Federal Communications Commission (FCC) is still tallying the final figure, broadband providers, edge providers, municipalities, public interest organizations, and predominantly individuals have submitted more than four million comments in the docket of its Open Internet proceeding. That degree of public participation alone makes the FCC’s proceeding historic. According to a preliminary analysis, the submitted comments overwhelmingly support the Commission adopting rules to enforce open Internet protections. And from what we know so far, Chairman Wheeler intends to do so. 

Although we will have to wait for the FCC to release its final order to assess its effectiveness, it seems likely that we are days away from clear rules enshrining fundamental network neutrality principles, placed on the strongest legal foundation available to the FCC under the Communications Act. Of course, only the Commissioners, FCC staff, and two pugs named Wilson and Thatcher have seen the draft item. All we have to go on for the time being is a four-page fact sheet Chairman Wheeler’s office released last week. 

{mosads}Based on that summary, the forthcoming order looks much different – and much more promising – than the proposal that initiated this proceeding. That proposal would have relied solely on the limited authority of Section 706 of the Telecommunications Act and would have allowed “commercially reasonable” paid prioritization. We now know the Chairman intends to reclassify broadband as a telecommunications service under Title II of the Communications Act, giving the FCC clear authority to prohibit blocking, throttling, and paid prioritization. The order will also include a general “Open Internet conduct standard,” prohibiting ISPs from otherwise harming consumers or edge providers. The rules will apply to both wired and wireless broadband, with allowance for “reasonable network management,” giving ISPs needed flexibility to contend with the particular limitations and challenges faced by different technologies. 

As with any four-page summary of a 300-plus-paged document, the fact sheet raises as many questions as it answers. Although the order will give the Commission authority to hear complaints related to interconnection – how networks attach and move traffic between one another – it is unclear how the rules will apply to the diverse peering and transit relationships that fall under that authority. Many ISPs are understandably concerned with how core Title II prohibitions on unjust or unreasonably discriminatory rates or practices will apply to their services and how the Commission will forbear from those provisions of Title II that it deems unnecessary. Some net neutrality advocates are equally concerned that the Commission’s “Open Internet conduct standards” may be less clear, and less enforceable, than straightforward bans on blocking, throttling, and paid prioritization. 

In a recent filing, CDT reiterated its support for Title II reclassification but noted that reclassification will require the FCC to assume an enhanced role in protecting the privacy of broadband subscribers. The Commission has the authority to take on that role under both section 201 and 222 of the Communications Act and CDT is pleased that the FCC intends to use that authority to protect consumer privacy. However, implementing consumer privacy protections without impeding effective network management will take cooperation among the agency, ISPs, and other stakeholders and organizations. CDT intends to participate actively in that effort. 

Aside from these substantive issues, opponents of network neutrality regulations have thrown in a kitchen sink of procedural objections. These range from assertions of undue influence by the White House, a lack of transparency, and other alleged irregularities. The House Oversight Committee has requested documents and announced a hearing the day before the Commission’s Open Meeting. Ironically, as detailed in a recent article in Ars Technica, opponents lodged similar objections against the FCC’s original decision to classify broadband as a Title I information service, which left the gap in authority that eventually doomed the 2010 Open Internet rules. Those objections have become historical footnotes and these objections likely will do the same. 

Ultimately, all that matters is the order the Commission will adopt Thursday. Certainly, the White House played a role in the order’s formation—as did John Oliver. But more importantly, millions of Americans told the FCC that they consider an open Internet an essential service in their daily lives. And countless edge providers, most of them small companies and startups, told the FCC they owe their existence to the open Internet’s low barriers to entry and tremendous reach. Most importantly, the FCC appears to have listened.

Stallman is the Open Internet director at the Center for Democracy and Technology.