WASHINGTON — Near the end of a written statement hailing Thursday’s Federal Communications Commission vote on open Internet rules as an “enormous victory,” Sen. Al Franken briefly fretted about the possibility that Republicans could work to undo the decision in the future.
But in what amounted to a sigh of relief, he added: “In the meantime, let’s celebrate.”
Franken has been one of Congress’ most vocal supporters of “net neutrality,” the concept that Internet providers must treat all online content equally and deliver it to users at the same speed. A court ruling imperiled that principle last year, but in an historic move Thursday, the FCC asserted its right to enforce net neutrality by reclassifying the way Internet providers are regulated, a move Franken and open Internet advocates have long called on the Commission to take.
It’s a massive win for open Internet activists, and the culmination of a year’s worth of work to convince the FCC to consider so-called “reclassification” to preserve net neutrality.
But it likely isn’t the end of the story. Internet service providers, whose lawsuit brought last year’s court decision, oppose the FCC’s moves and could choose to sue again. And outside the courts, there is an effort, albeit probably a long-shot one, by congressional Republicans to undo the FCC’s decision and write the rules in Congress.
What happened Thursday
What the FCC did is called “reclassification.” Under the old system, the FCC considered Internet service providers — companies like Comcast and CenturyLink — information providers, and a District Court ruled last January that rules like net neutrality couldn’t be applied to information providers. On Thursday, commissioners voted 3-2 to reclassify Internet service as a telecommunications service, which opens it up to more regulation.
Net neutrality has been a guiding principle on the Internet for a long time. Providers like Comcast aren’t allowed to charge websites like Netflix extra in order to deliver video to consumers faster than, say, Hulu. Companies can’t purposefully slow down content delivery, meaning a news site and a personal blog travel at the same speed.
But while the principle of net neutrality has existed for years, the FCC only recently tried enforcing it as a rule. This prompted a 2010 lawsuit by Verizon against the FCC’s net neutrality rules. Verizon later won in federal court, where a judge said the FCC didn’t have the power to regulate an information provider that way.
So, spurred on by activists, lawmakers and President Obama, the FCC reclassified Internet providers on Thursday, and though its final rule isn’t public yet, it will treat the web as a “common carrier” — a utility like a telephone service, forbidden to discriminate against any of the content it’s delivering.
As happy as activists were about the FCC’s decision, the cable companies whose litigation brought it about in the first place are warning about the ill effects of reclassification.
Counting something as a common carrier opens it up to a lot more regulations than Internet providers are used to — technically, for example, the FCC could now set Internet service rates. FCC Chairman Tom Wheeler has said the government won’t do that, and took steps to include that in the final rule. But cable companies say the decision threatens the Web with over-regulation, and that it relies on a law from the 1930s never designed for Internet (to prove a point, Verizon published its statement on the matter in Morse code).
At this point, it’s assumed that companies like Verizon or Comcast will sue again to get the rules off the books. They haven’t detailed any lawsuits yet, but have threatened litigation for nearly a year.
“The big Internet service providers do have very deep pockets, so they’ll probably file suit, even though I think looking at this, there’s not much there, there,” Franken said. “I don’t know on what grounds they’re going to be able to prevail in court. They’ll probably just go through the exercise.”
University of Minnesota law professor Bill McGeveran said it’s possible the companies could look to challenge the FCC’s ability to reclassify the Internet. Officials on Capitol Hill said they couldn’t find another example of the FCC ever reclassifying an existing entity, though it’s an established part of administrative procedure.
“Victory in a court setting would be finding that the FCC didn’t have the authority to reclassify,” McGeveran said. “It would set us back to where we were the day before the vote, where the FCC doesn’t have any successful rules to protect net neutrality.”
Not everyone is sold on the idea of an imminent lawsuit, though. Tim Wu, a law professor who coined the phrase “net neutrality,” wrote a New Yorker article Thursday theorizing that Internet providers might hold off on a lawsuit, noting, in part, rising stock prices since Wheeler floated reclassification, and increasing investment in broadband infrastructure, in spite of warnings from Internet service providers that reclassification would stifle such investment.
Legislation’s poor chances
A legislative response from Congress is unlikely, thanks to the political realities around net neutrality. Republicans have generally opposed reclassification, arguing it gives government too much regulatory power over the Internet, while Democrats and President Obama back it, meaning a bill relating to the FCC’s decision (either overturning it or codifying it into law) is unlikely to pass.
Even so, South Dakota Sen. John Thune has become Republicans’ point person on net neutrality, writing a bill that he says would preserve many core open Internet concepts, like preventing “fast lanes” for paid content. But the bill would undo reclassification, and also remove some of the FCC’s regulatory powers, which is why Democrats and activist groups oppose it.
Thune said Thursday that he’s trying to find a way to preserve net neutrality principles without the FCC taking the big step of reclassification. He argued a bill would provide more certainty for consumers (a future FCC board could technically overturn Thursday’s decision, but not a federal law) and bypass legal challenges from providers.
“The best solution would be to move a very narrow and simple approach legislatively that reins in the FCC, puts the necessary consumer protections in place, but is very limited,” Thune said at a National Journal event Thursday morning.
Franken said it’s not happening.
“We don’t need a net neutrality bill in the future,” he said. “You get voice over the Internet, you can get video. It is a telecommunications service. That’s what it’s become, and it should be regulated as such.”
Times have changed for net neutrality. As a concept, it’s less than 15 years old, but before last year, it wasn’t something that usually drew large-scale congressional attention.
“It does really show the recognition that this is an issue that people really consider important,” McGeveran said. “The perception of what’s at stake really is different than what it was when the first net neutrality regulations were proposed at the beginning of this.”
Driven by the public
In that way, Thursday’s FCC decision was a victorious moment for a coalition of Internet companies, brick-and-mortar businesses and the grassroots that pushed for stronger open Internet protections.
Internet media companies like Netflix have long backed net neutrality, and to get these regulations on the books, they fought alongside like-minded banks, creditors and even car companies.
But regular people took up the cause, too. Hundreds of thousands of people signed online petitions in favor of net neutrality. Obama thanked online activists on Reddit for their efforts. When the FCC solicited comments on a watered-down version of net neutrality rules last year, more than 4 million people left their opinions, the most in FCC history. Thune, too, acknowledged that, even though he’s “never been one to assert a role for government unless there is a real or actual need,” he took up the cause of legislating the issue because of concerns he heard from the public.
For now, that work is done. The FCC has ruled, and the slow rollout of the regulations themselves gives everyone a bit of breathing room until any potential next phase begins.
“We have to stay vigilant. I would say to anyone who cares about this issue, stay tuned,” Franken said. “I think this is settled for now, but there will be those coming after it, obviously.”
Devin Henry can be reached at firstname.lastname@example.org. Follow him on Twitter: @dhenry