CD editor's note: On Wednesday, subsequent to the publication of the piece that follows, FCC Chairman Tom Wheeler made headlines Wednesday by announcing officially, via this op-ed on Wired.com, that he will officially propose "the FCC use its Title II authority to implement and enforce open internet protections."
The FCC has started to confirm for press some of the details about its proposed open Internet rules, and it looks like the agency will use Title II of the Communications Act — the legal classification that gives the agency the power to protect real Net Neutrality.
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.
Creating policy change is hard. It’s often incremental and marked with smaller victories that involve lots of tradeoffs and compromises. But if you can get all the way down to the root of a problem, real progress can occur.
There’s a reason the Net Neutrality fight has been all about Title II over the last year. Our communications networks have always worked thanks to the principle that carriers shouldn’t be allowed to discriminate unreasonably against users, and that everyone needs legal protections to transmit the information of their choosing between points of their choosing. Only Title II gives the FCC the legal foundation it needs to guarantee such protections and carry them over to broadband.
Even the most vitriolic opponents of Net Neutrality have recently tried to co-opt the language of open Internet activists, saying they oppose fast lanes (even while they push legislation that would strip the FCC of its ability to protect Internet users).
The key, as it always is for politicians and policymakers, is not what they say but what they do. If folks like Rep. Fred Upton and Sen. John Thune were really for Net Neutrality, they’d realize that Title II is the source for the principles we’ve always had — and still need today — for our communications networks.
The Internet has flourished because it’s built on a level playing field. But over the last decade, the FCC has made blunder after blunder in its attempts to protect that openness. The trouble began when the agency declared that broadband providers no longer provided “telecommunications services” but “information services” — pretty much the same as any website or application. In other words, the FCC erased the line between the network and the speech that travels over the network.
Our speech and the information we send to each other aren’t subject to the FCC rules that prevent carriers from discriminating online — but those broadband networks sure need to be. The FCC tried to have it both ways, keeping some protections in place for broadband users while ignoring the law and giving away its source of authority in Title II for those protections.
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That’s why the FCC twice lost in court on its previous Net Neutrality rules — not because the rules were bad, but because the FCC offered the wrong justification for them. The last decade of debate and attempted policy fixes all stemmed from this FCC mistake that the cable industry lobbied for.
As the saying goes, when one door closes another one opens. Last January, when the court struck down the FCC’s 2010 Open Internet Order, it gave us the outcome we needed to go forward and do it right this time. No more shaky legal compromises rooted in industry agendas, with lies about the law and false promises of deregulation underpinning those patchwork-quilt attempts.
Within two weeks of the decision, over a million people (the first of several million to take action last year) urged the FCC to fix the problem. The message: Just do Title II.
Title II doesn’t just restore the principles of nondiscrimination that have served as the bedrock of two-way telecommunications policy in the U.S. It also gives the FCC the authority it needs to preserve universal and affordable access, competition and consumer protections for broadband users. Like Net Neutrality, these foundational principles are at the core of our communications needs for the next century and beyond.
With Title II we have the legal authority we need to win the battles that are coming around the bend. Congress will look for ways to tear this victory down. ISPs will search for ways to skirt the law — and they’ll sue to overturn it. But we’ll stand on the strongest legal footing possible to win in Congress and in the courts.
If the FCC votes to reclassify under Title II, it will be one of the greatest public policy victories in decades — because it's not a defensive move. Title II is the law the FCC should have applied all along, and reclassification is a proactive push to protect the rights of Internet users at a time when companies like AT&T, Comcast and Verizon are trying to control the market and strengthen their monopoly status.
A Title II win will prove that organized people can trump organized dollars — and that industry’s half-assed attempts to co-opt grassroots language are no match for the innovative tactics of true Net Neutrality activists.
As the details of the FCC’s rules emerge over the next three weeks, the push from the cable and phone industries will become even more aggressive. There will be enormous pressure on the FCC to weaken its proposal before the final vote on Feb. 26. And there’s plenty to watch out for as the details come to light. (The devil is always in the details.)
But no one should underestimate the significance of a victory on Title II. Everything else we want grows from this win.