Federal Communications Commission Chairman Tom Wheeler’s announcement that he will seek to re-classify broadband as a common carrier under Title II of the Communications Act, ensuring equal access to all websites by treating the Internet like a public utility, is the biggest victory for bottom-up organizing since the repeal of Don’t Ask Don’t Tell in 2010.
When pro-net neutrality groups like Free Press, Demand Progress, and Fight for the Future opposed Wheeler’s initial proposal for “fast lanes” for companies that pay for speedier website loads, hardly anybody gave them a chance of securing a truly open Internet. But despite the gloomy determinism about money in politics, despite the expectations of corporate hegemony, despite the certainty that powerful voices can just drown out everybody else, sometimes people can make a difference through concerted effort.
Why did it succeed where so many others failed? And what lessons can activists use to inform other battles down the road?
There were unique contours to the net neutrality fight. First of all, you couldn’t have picked a better way to maximize public engagement than to make a villain out of major telecom companies. Time Warner and Comcast literally took up four of the five top slots of the most hated companies in America in a recent study by the University of Michigan (one each for their Internet service provider, and one for their television service). Banks look good compared to telecoms.
On the other side of that equation, in the role of hero, is America’s ultimate time-waster, key method of social interaction, economic engine and virtual lifeblood: the Internet. The universe of potential participants in a movement to defend the Web numbers in the hundreds of millions. And there was no doubt that, if properly informed about the dangers of discriminating against certain types of content, people would recognize the stakes. “The harm they would suffer is explicable, it doesn’t require empathy for someone else’s suffering,” said David Segal of Demand Progress, part of the coalition that rallied for net neutrality. “The website they love would no longer exist as they knew it.”
Internet users got a taste of this when Comcast, one of those hated telecoms, started throttling the speeds of Netflix streams in late 2013, essentially holding the bandwidth hostage until the movie rental service paid a fee for direct connection to its network. This was a real-time example of the consequences of an unequal Internet, not something that had to be imagined. And personalities like John Oliver could distill it into bite-sized form and whip up plenty of attention.
The people that coalition leaders wanted to organize all were actively using the tools of the organizing: their websites and social media streams. And they had come together before, to defeat the Stop Online Piracy Act (SOPA) in 2012. That bill would have shut down websites over subjective copyright claims, a giant giveaway to media conglomerates. But millions used Web-based organizing to stall the bill in Congress before it ever got a vote.
The potential for mass public pressure for net neutrality manifested itself in a few critical weeks last April, after Wheeler announced his original blueprint, and before those proposed rules came up for an FCC vote. 3.4 million Internet users took some form of action. Protesters occupied the FCC, building tent cities on the agency’s doorstep. The crush of comments crashed the FCC’s servers on more than one occasion. The FCC called it the largest response to any rulemaking in their history. And in reaction, they changed the proposal, adding the possibility for reclassification under Title II.
Activists took advantage of splits between Wheeler and fellow Democratic commissioners Jessica Rosenworcel and Mignon Clyburn, who were more hesitant than Wheeler to approve Internet fast lanes. It’s an open secret that Rosenworcel wants to become FCC chair someday. So activists understood that targeting Democratic members of Congress, who could eventually have a say in confirming Rosenworcel, would be another way to reach her. In the end, Congress offered more support for Title II reclassification than ever before, and Rosenworcel clearly heard this. In fact, Wheeler’s plan for “hybrid” Title II authority, focused on access issues rather than things like rate-setting, looks most like a proposal from former Congressman Henry Waxman.
Wheeler became less the leader of the FCC than the swing vote; if he wanted to pass anything resembling net neutrality, his options were limited beyond Title II reclassification. He found himself trapped by his prior statements of steadfast support for an open Internet, much as President Obama was constrained by a similar history.
Obama announced his support for reclassification in November as the only way to attain true net neutrality; his handpicked chairman could hardly try to peddle anything less than that and get away with it. This allows Obama to pocket a victory at a time when the last two years of his presidency will be marked by playing defense against a Republican Congress. If he wants to leave a legacy in the twilight of his term, it will have to happen at the agency level. Activists understood this and urged the president to make his position known to Chairman Wheeler, and they succeeded.
Activists also had a counterweight to the deep pockets and long-standing relationships of the telecom industry. Web companies generally supported net neutrality, and resisted paying a fee to get their content served quickly. But the fight revealed an interesting split in Silicon Valley.
Older, more established companies, like Google, Facebook and Apple, didn’t do much beyond affirming long-held principles in press releases. But the second generation of companies, from Netflix to Reddit to Kickstarter to Digg, offered more meaningful support. They all participated in the Internet Slowdown, a day-long event to drive awareness and activism around the FCC rules. And they used their platforms to get users interested in the issue.
This isn’t too surprising. The older-line Internet companies have some incentive to allow fast lanes, as long as they remain the only websites that can afford to use them. Upstart companies saw an unequal Internet as a real threat, and they acted accordingly.
While not official until a final vote on February 26, and while the rule language has not yet been disclosed, the announcement by Wheeler has enough meat on it to offer a rare proof of the lessons taught in civics class. When things line up just right, and smart organizers know how to maximize their influence and reach, political engagement really can change opinions and shift policy.
The FCC, to their credit, facilitated a real public conversation about how to ensure the broad goal of equal treatment for everything on the Internet, and actually listened to those who argued reclassification provided the best way to reach that goal. Senior leadership met with activists, received millions of comments, and kept all options available, even as telecoms screamed about the consequences. (Hilariously, if Verizon had simply accepted weaker rules passed by the FCC in 2010, instead of successfully throwing them out in a lawsuit, we would never be on the verge of reclassifying broadband today.)
By relying on agency rules, activists know that more lawsuits are likely, or that President Scott Walker or Marco Rubio’s FCC could reverse the regulations. Legislation would be more durable over the long term. But until that’s on the table, activists needed to take the fight to where they had a chance at victory. And the fact that they outlined a goal, engaged, and apparently won provides a measure of faith that our political system, often written off as useless and malign, still has some life in it. As Wheeler said in May about the citizen participation in the process, “One must think the Founding Fathers are looking down and smiling.”