The Federal Communications Commission Thursday passed sweeping new net neutrality rules, a government promise of unrestricted internet across America and a major milestone in the shift in American corporate power to Silicon Valley.
The new regulations aim to guarantee that everything transmitted online has to be treated the same by the companies carrying the data — regardless of where it's coming from or who it's going to. The policy is aimed at warding off one particular nightmare of consumers and tech companies alike: cable companies creating "fast lanes" for the content providers that can afford them, and throttling of data speeds for those that refuse to pay. Net neutrality is a commitment to preserve the internet as you know it, one passed with a hard push from President Barack Obama and over the scattered warnings of conservatives who say it opens the door to a new era of regulators meddling with the open web.
For the past several years, and especially since the courts struck down parts of the FCC's open internet laws in January 2014, cable companies, most notably Verizon and Comcast, have pushed to change the operating rules of the internet. They wanted the right to put a tiered system in place, under which content providers could pay for prioritization from the cable companies. This restructuring would have meant that speeds and quality of internet could change for both consumers, like you, and content providers (like BuzzFeed). Content providers — Google, Facebook, Netflix, etc. — would have to pay extra to ensure that their audience received premium access to their content, shutting out any content providers without the established capital to pay their way to an audience. Thursday's battle was equal parts a revolt of consumers against the hated cable companies and a hard-nosed corporate battle between the well-connected incumbent telecommunications firms like Comcast and the giant new tech companies who have now surpassed them in Washington power.
The vote passed 3-2 in favor of net neutrality. The vote took place after arguments from FCC Chairman Tom Wheeler, the four FCC commissioners, and statements in favor of net neutrality from Sir Tim Berners-Lee, Etsy CEO Chad Dickerson, and the creator of The Killing, Veena Sud.
"Today is an irrefutable reflection of the principle that no one, whether government or corporate, should control free and open access to the internet. The internet is the most powerful and pervasive platform on the planet. It's simply too important to be left without rules and without a referee on the field. The internet has replaced the functions of the telephone and the post office, it's redefined commerce, and, as the outpouring from 4 million Americans has demonstrated, the internet is the ultimate vehicle for free expression," Wheeler said, shortly before the vote.
FCC Commisioners Ajit Pai and Michael O'Rielly delivered dissenting arguments. "The internet has become a powerful force for freedom, here and around the world, so it is sad to witness this morning the FCC's unprecedented attempts to replace that freedom with government control," said Pai. "Consumers will be worse off under President Obama's plan to regulate the internet." Wheeler countered, arguing that today's ruling is "no more a plan to regulate the internet than the First Amendment is a plan to regulate free speech."
The clearest consequence of the 3-2 vote is that a tiered system will not be put in place. The FCC will now view internet access as a public utility, which means that broadband internet will be reclassified as a telecommunications service. More specifically, it's going to fall under Title II of the Communications Act, which means that it will be regulated under the same law telephone service today is. The law that now applies to the internet was put in place to avoid monopolies and ensure service is provided in all circumstances.
Earlier this month, FCC Chairman Wheeler published an op-ed for Wired outlining his principles on the matter ahead of the decision to approve regulation:
"Originally, I believed that the FCC could assure internet openness through a determination of 'commercial reasonableness' under Section 706 of the Telecommunications Act of 1996. While a recent court decision seemed to draw a roadmap for using this approach, I became concerned that this relatively new concept might, down the road, be interpreted to mean what is reasonable for commercial interests, not consumers."
This represented an about-face — reportedly under heavy pressure from the Obama White House — from Wheeler's previously lax approach to regulation — his initial proposal for the regulation of broadband would reportedly have allowed for fast lanes.
This decision is a reflection of one of the very few hot-button issues in politics today that are bipartisan, according to public polling, and despite the cable companies' efforts to rally Washington support, Republicans never really rallied to oppose the move in an organized way — though it has drawn denunciations from conservative figures including Senators Rand Paul and Ted Cruz, who dubbed net neutrality "Obamacare for the Internet," warning that the plan reflects both overweening regulation and executive overreach.
The details of the debate may be complex, but supporters of net neutrality have clearly defined its terms. According to one survey, 75% of Americans are against slow lanes from internet providers, and they spoke up about it. Major online activism events like SOPA — the Stop Online Piracy Act introduced and widely protested in 2011 — served as a testing ground for how passionate the public feels about keeping the internet a free space, and how willing people are to speak up about it. After John Oliver took on the issue on his show, the FCC website shut down after being inundated with comments. The clip of his show has over 8 million views today. Additionally, large swaths of the internet mobilized to make it clear that net neutrality would become a hot-button issue; communities like Reddit, Etsy, and Tumblr became centralized actors in making a commitment to regulation heard.
Though the cable providers drew little sympathy, critics of net neutrality say it's solving a theoretical problem with a creaky regulatory regime created in 1934 that could have unintended consequences for a complex, messy system that has largely grown unregulated. One concern stems from taking the principle of equal access to its logical extreme, something suggested by BlackBerry CEO John Chen. His version of net neutrality extends to software, not just internet access. So, when Netflix decides not to make an app for BlackBerry because of its tiny market share, Chen can make the claim that Netflix is not making its service equally available to everyone.
There's little sign that there are the required 60 votes in the Senate to challenge the FCC's move. The battles will now shift to the federal courts — and, should a Republican succeed Barack Obama, to a new, right-leaning FCC.
Brendan Klinkenberg is a tech reporter for BuzzFeed News and is based in San Francisco.
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