FCC Rules in Favor of “Open and Unfettered” Internet

By Bailey Edelstein

History was made at the Federal Communications Commission’s open meeting at their headquarters in Washington, DC on Feb. 26 to determine the future of the Internet for U.S. citizens and their Internet Service Providers (ISPs).

“Today is a red-letter day for Internet Freedom,” FCC Chairman Tom Wheeler said. “The action we take today is about the protection of Internet openness.”

During the two-and-a-half hour meeting, the items titled “Community Broadband” and “Protecting and Promoting the Open Internet,” were both passed by a 3-2 vote, along party lines.

“I ran for office because I believed that nothing can stand in the way of millions of voices calling for change,” President Obama said in reaction to Thursday’s vote. “That’s the backbone of our democracy—and [American citizens have] proven that this timeless principle is alive and well in our digital age.”

It all began in 2010 when the FCC’s first net neutrality protections were placed upon ISPs. After Verizon Communications filed a federal lawsuit, the Federal Appeals Court overturned the rule. This reversal was met with a public petition that earned the support of the White House. A new set of FCC rules came to fruition with the help of the commission’s public commenting system as they called upon citizens’ input to draft the new net neutrality laws.

“Your participation has made this the most open proceeding in FCC history,” Chairman Wheeler said, dedicating the victories on Thursday to the 4 million American voices who inundated their offices with emails, phone calls and letters lending perspectives and concerns about net neutrality. “You made our process and thus our decision stronger.”

This historic meeting began with the approval of the “Community Broadband” item which would permit the FCC to exercise its powers under Section 706 of the Telecommunications Act of 1996 to overstep state laws and free up boundaries for the expansion of municipal broadband providers in cities in North Carolina and Tennessee.

Gregory Kwan of the Wireline Competition Bureau which delivered the petition on behalf of these states to the FCC in favor of preemption, stated the item’s purpose is, “To leverage these networks to provide more services to neighboring communities that are requesting it.”

Some people within feet of a service provider’s fiber system ends are unable to receive its services due to state restrictions. In his statement, Chairman Wheeler referenced audience members present from North Carolina and Tennessee, illustrating how they were being victimized by this physical digital divide.

“When local leaders have their hands tied, local businesses and residences can share the consequences,” Wheeler said.

The items from the hearing were carried successfully in the favor of Chairman Wheeler and his Democratic commissioners, Mignon Clyburn and Jessica Rosenworcel. Opposing arguments were delivered by Republicans Ajit Pai and Michael O’Reilly.

“I do not believe this agency has the legal power to preempt,” commissioner Pai said in disagreement with the item on community broadband.

The dissent from commissioners Pai and O’Reilly stem from their concerns about the FCC’s plans to preempt which, they say, breach basic constitutional law that requires dual sovereignty with regards to federalism and the relationship between states and its subdivisions.

“Broadband Internet access affects all aspects of daily life for individuals and the communities where they live,” said Julie Veach, Chief of the Wireline Competition Bureau. “[It] affects education, health care, public safety and drives local economic growth as well as our nation’s ability to compete in the global economy.”

These decisions came at a time when the capabilities of Internet remain unknown. In its short lifetime this technology has served as a platform for action, both constructive and destructive, worldwide.

“[The Internet is] simply too important to be left without rules or a referee on the field,” chairman Wheeler said. “The rules for a fair and open Internet are not old style utility regulation, but a 21st century set of rules for a 21st century service.”

The second item on the agenda addressed net neutrality concerns from the macro perspective. The commission heard from Sir Tim Berners-Lee, inventor of the World Wide Web, as well as CEO of peer-to-peer e-commerce website Etsy.com, Chad Dickerson, who referred to the Internet as a “platform for entrepreneurship.”

“The action today will preserve the ethos of permission-less innovation that has always been at the heart of the Internet,” Sir Berners-Lee said via video message to the commission. “The World Wide Web spread to reach all corners of the global economic world, enabling hundreds of billions of dollars of economic growth and to enhance free speech and democracy around the world.”

Commissioner Clyburn referred to the docket item as the “third bite of the apple” toward setting rules for a neutral Internet once and for all. She emphasized how an open Internet would provide equal access and opportunity for students browsing the web across socio-economic classes.

“Teachers [can be] sure that their pupils are free to access any lawful websites and such websites won’t load at dial-up speeds,” Clyburn said.

In opposition, commissioner Pai noted the rulings would dictate an inevitable increase in taxes for companies and consumers, claiming the fine print goes against what the American public is calling for: competition.

“Literally nothing in this order will promote competition among ISPs. To the contrary, reclassifying broadband will drive competitors out of business,” Pai said. “President Obama’s plan to regulate the Internet is nothing more than a Kingsbury Commitment [a settlement of AT&T’s first anti-trust lawsuit] for the digital age.”

Chairman Wheeler closed the debate by listing the rules that the order will include. It combines the Title II Communications Act with the powers stated in Sec. 706 of the Telecommunications Act to list the Internet as a commodity.

Wheeler states the FCC will be “Using all tools in our toolbox to protect innovators and consumers to ban:

  • Paid prioritization: the so-called fast lanes, they will not divide the Internet into haves and have-nots.
  • Blocking: consumers will get what they pay for: unfettered access to any lawful content on the Internet.
  • Throttling: because degrading access to legal content and services can have the same effect as blocking and it will not be permitted to exist.”

Like any vital body part, the Internet requires multiple key players to make it available and operable by the population at large. The American people and a majority of U.S. government believe that without this push for new regulations, ISPs could leverage their control over the speed of their subscriber’s broadband channels for profit, setting the stage for unfair, corrupt competition on multiple fronts.

Commissioner O’Reilly denounced the item as a “secret plan to regulate the Internet” and called the FCC out on their lack of transparency throughout this process.

“This is no more a plan to regulate the Internet than the first amendment is a plan to regulate free speech,” Wheeler said. “They both stand for the same content: openness, expression, an absence of gatekeepers telling them what they can do, where they can go and what they can say.”

U.S. citizens will bear witness to the effects of the rulings and decide for themselves whether they believe net neutrality has been achieved. The FCC’s next open hearing will be held on March 26, 2015.

Written for American University’s Advanced Reporting Class Spring 2015

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