Facing Growing Grassroots Pressure, Wheeler Revises Net Neutrality Proposal

The protesters began arriving outside the Federal Communications Commission (FCC) headquarters in Washington DC last week. A few have camped out there, Occupy-style, all weekend. The size of the demonstration is expected to grow by the hundreds on May 15, when the FCC will vote on introducing new neutrality rules for public comment.

The small demonstration is the physical manifestation of a massive online movement to shape the FCC’s latest attempt to establish a regulatory platform for net neutrality – the concept that web users and content makers should be able to create and access whatever they want online, without interference from their broadband provider. The activism is having an impact.

After coming under increasingly heavy pressure in recent weeks from grassroots activists and powerful Silicon Valley firms, FCC Chairman Tom Wheeler is revising the new rules just days before publicly rolling them out. Wheeler has been floating a new net neutrality proposal among his fellow commissioners since last month, after a federal appeals court threw out the agency’s 2010 rules in January after a legal challenge from Verizon.

Like the demonstrators outside the FCC, internet freedom advocates and leading tech companies alike worry that Wheeler’s new rules won’t go far enough to protect net neutrality. Wheeler’s proposal is expected to allow internet service providers to charge companies like Google and Netflix special fees to reach consumers faster, creating two tiers of internet delivery speed – a “fast lane” for wealthy companies who can afford the fees, and another for startups, small businesses, nonprofits and everyone else who can’t.

Wheeler, however, recently said reports indicating that the new rules would allow anticompetitive deals were inaccurate. He stated that the new rules would allow the FCC to intervene on a case-by-case basis to protect consumers if internet service providers tried to strike deals with web firms that were determined not to be “commercially reasonable.”

“If anyone acts to degrade the service for all for the benefit of a few, I intend to use every available power to stop it,” Wheeler wrote in an April 29 blog post.

But internet freedom advocates, tech companies and even Wheeler’s own political allies are not buying it.

Consumer groups and legal experts have expressed doubts about the FCC’s ability to determine when to crack down on broadband companies for unfair online discrimination on a case-by-case basis, a process that could turn into a complicated legal minefield. Last week, nearly 150 top internet firms sent a letter urging the FCC to protect internet users from “paid prioritization” that would allow broadband providers to give some companies faster access to web users for a fee.

FCC Commissioners Mignon Clyburn and Jessica Rosenworcel – the two Democrats on the commission Wheeler needs for a majority vote – recently expressed concerns as well.

In response to the more than 100,000 people who have recently contacted the FCC about net neutrality, Clyburn reiterated her past support for prohibiting pay-for-priority fast lanes in a blog post last week. In a speech last week, Rosenworcel said she had concerns about the conversation around “what a ‘commercially reasonable’ internet fast lane looks like,” and suggested the FCC delay its vote for at least a month to allow for further public comment because so many people were contacting the agency.

On Monday, reports indicated that Wheeler had revised his proposal in the face of mounting public criticism. Anonymous FCC officials told The Wall Street Journal and The Washington Post that Wheeler’s revised proposal would still allow broadband companies to sell web firms faster delivery speeds for reaching consumers, but makes clear that the FCC will scrutinize deals to make sure that “broadband providers don’t unfairly put nonpaying companies’ content at a disadvantage.”

In other words, companies like Comcast could still strike fast lane deals with content providers like Netflix, but internet service providers could not punish firms by slowing their content delivery for failing to pay up.

Wheeler’s revised proposal also asks for public comment on whether pay-for-priority fast lanes should be banned altogether, although he didn’t drop the fast lane proposal from the new rules.

The revised proposal will also take public comment on whether the internet should be reclassified as a public utility like telephone service, which would allow for greater government regulation. Progressive groups say federal court decisions have made it clear that the FCC must reclassify the internet as a public utility or “common carrier” service to institute net neutrality rules that will withstand legal challenges from telecom giants like Comcast and Verizon. The telecom industry -which enjoys a revolving door at the FCC – firmly opposes the idea, arguing that it would give regulators too much power and stifle innovation.

Craig Aaron, president of the watchdog group Free Press, said Wheeler is obviously reacting to grassroots pressure, but his revisions still do not go far enough to give internet users the protections they demand.

“He needs to abandon the flimsy and failed legal approach of his predecessors and reclassify internet service providers as the common carriers they are,” Aaron said. “If preventing fast and slow lanes on the internet is the goal, reclassification is the way forward.”

In a recent blog post, Wheeler wrote that he would consider reclassification if necessary, which would place the internet under Title II of the Communications Act. Wheeler, however, believes that corporate legal challenges to Title II classification would leave the market unprotected for multiple years while using the legal “roadmap” established by the federal appeals court that threw out its 2010 rules would allow the FCC to establish net neutrality rules more quickly.

“Just because I believe strongly that following the court’s roadmap will enable us to have rules protecting an Open Internet more quickly, does not mean I will hesitate to use Title II if warranted,” Wheeler wrote.

In a statement, Free Press said it expects hundreds of people to protest outside the FCC against Wheeler’s proposal on May 15.

Evan Greer, an activist in Washington DC with the Internet freedom group Fight for the Future, told Truthout that a small group of demonstrators will maintain their presence day and night outside of the FCC headquarters until the protest.

“Putting the protest right there on their doorstop has been very effective in moving this conversation forward,” said Greer, who added that the people outside the FCC represent the millions of people who have signed petitions and taken other actions online.

Greer said Wheeler is “backpedaling” in response to grassroots pressure, and internet freedom advocates now expect the telecom lobby to start working overtime.

“We’re not happy yet,” Greer said. “We want real commitments.”