The Federal Communications Commission‚Äôs (FCC) Open Internet Order establish “net neutrality” rules requiring that broadband providers disclose how they manage their networks while prohibiting them from blocking any lawful content, apps services or devices and from unreasonably discriminating against any Internet traffic. These are principles that date back to the Pacific Telegraph Act of 1860 and hardly match the rhetoric of “Internet takeover” voiced in opposition.
As Judge Tatel emphasized at the beginning of his opinion overturning the Open Internet Order earlier this week, his task was not to assess the wisdom of [net neutrality] but rather to determine whether ‚Ä¶ the regulations fall within the scope of its ‚Ä¶ authority. ”
What was controversial and ultimately fatal to the order was the imposition of common carrier type of obligations on Internet access providers (since in 2002 the Bush FCC reclassified Internet access services as separate from telecommunication services which were subject to common carrier regulation) without reversing the 2002 decision. The FCC knew this was a huge risk since the same court had overturned the prior net neutrality policy in 2010 on similar grounds, but proceeded anyway, “once more with feeling” as one commentator noted, rather than take on the telecom companies and Republicans on Capitol Hill.
So now what?¬† When the net neutrality debate first began it was quickly dismissed by opponents as a nebulous slogan designed to prevent merely hypothetical harms. Since that time, almost all of the harms warned of have occurred. Verizon, which challenged the Open Internet Order, has refused to activate a non-Verizon tablet; blocked pro-choice text messages; argued that it had a First Amendment right to censor traffic on its network and indicated to the court that it would implement two market pricing (i.e., charging both the Internet user and content providers) were it not for the Open Internet Order. Time-Warner and Comcast each have exempted their own streaming data services from their bandwidth caps, while AT&T and Comcast have blocked access to certain applications and websites.
New FCC Chairman Thomas Wheeler has hinted that he might take a wait-and-see approach to the decision and suggested that two-market pricing is inevitable, which on one level is understandable. Any new attempt at net neutrality regulations is sure to trigger vehement opposition from the industry and its allies on Capitol Hill in both parties ‚Äî with the telecoms‚Äô chief lobbyist using the phrase “World War III.” In addition, the administration and Democrats in Congress are certain to remember that all 95 House members who signed pro-net neutrality pledges in 2010 were defeated in the 2010 Republican landslide.
These unpleasant realities, however, do not change the fact that once we start going down the path towards a tiered Internet it will be irreversible and that would be a great tragedy. In this age of growing income equality, in which we have created separate courts, educational systems and even health care for the haves and have-nots, who wants to be able to say we once had a free and open Internet and let it slip away?
In addition, we must be mindful of the importance of the Internet to our sustained economic growth. A¬† 2011 McKinsey study found that the Internet contributed to 21 percent of the GDP growth in mature economies over the prior five-year period. Are we to sit idly by while greedy ISPs attempt to stifle the creativity and innovation of the Internet?
A lot has changed since 2010, most notably the amazing response of grassroots netizens in defeating SOPA and CISPSA in 2012 where 14 million citizens contacted Congress to voice their opposition causing one of the most remarkable overnight reversals in Congressional history.¬† This is where grass-roots netizens need to step up once again and demonstrate to Chairman Wheeler that this is a fight that must be engaged and can be won. I encourage Chairman Wheeler to hold town halls across the nation and see the response he gets.
The administration would be wise to remember that this is the constituency that helped him win the nomination in 2008 and whose support has waned due to issues like the NSA scandal.¬† This is a golden opportunity to not only re-engage this community, but also energize them through November.
Net neutrality lost this week not because of the strength of the FCC‚Äôs arguments, but rather because of the weakness of their stomach. This is no time for the timid; too much is at stake. It is still our Internet and together we can save it if enough of us persuade President Obama and Chairman Wheeler to heed the words of Voltaire and “declare the truth thou hast, that all may share; Be bold, proclaim it everywhere: They only live who dare.”
Bennet Kelley is founder of the Internet Law Center in Santa Monica and a past co-chair of the California Bar Cyberspace Committee.