Last week's historic decision by the FCC to pass strong net neutrality protections is both closure to a 13-year-long struggle and an opening salvo for battles to come. In one of the most important public interest decisions in American media policy history, the FCC, in a 3-2 party-line vote, reclassified broadband as a common carrier telecommunications service under Title II of the Communications Act.
What this means is that the FCC now has the regulatory authority to prevent Internet service providers from discriminating against (blocking or slowing down) online content or creating fast and slow lanes based on whether content creators can afford to pay up. This is a big deal, and the excitement is warranted. But potential threats abound.
In the near term, we should expect continued court challenges and efforts from the Republican-led Congress to undercut the FCC's regulatory authority if not seek outright reversal. We have yet to see the final wording of the ruling, but potential litigants are reportedly lawyering up for judicial review, and AT&T has already announced its intent to sue. Beyond the decision being vacated by a court or Congress, a future reversal from a Republican-led FCC is also possible.
And even preserving net neutrality will not come close to solving our many Internet problems like slow speeds, high prices, digital red-lining (insufficient penetration of broadband outside metro/affluent areas), and lack of competition in local Internet service markets. In many ways, this decision only prevented things from becoming potentially much worse -- an Internet without net neutrality could fast become a feudalized space.
Nonetheless, this decision gives the lie to the old saw that we cannot "re-regulate" once the genie is out of the bottle. And it shows that these issues are not too technical or wonky for the public to care about. Only six months ago this vote seemed entirely inconceivable. Four million public comments later (with some help from the John Oliver bump), the FCC came around to a surprisingly bold position in opposition to one of the most powerful lobbies in Washington.
While this turnaround certainly doesn't prove that our political system is suddenly working like it should in a democracy, the FCC's decision is not the expected behavior of a captured regulatory agency. How did this happen?
For starters, it helps when policymakers clarify what's at stake. President Obama's "FDR moment" saw him using his platform to inform the public via YouTube about net neutrality's importance and what should be done to preserve it. Commissioner Tom Wheeler brought similar ethical and pragmatic clarity to last week's FCC meeting. He dismissed as "Nonsense!" the scaremongering that net neutrality amounted to a government takeover of the Internet, declaring that it "is no more a plan to regulate the Internet than the First Amendment is a plan to regulate speech."
But these moves followed public engagement instead of creating it. The dramatic shift in this debate could not have happened without sustained public pressure. It also could not have been possible without the decade-long organizing by grassroots public interest groups like Free Press and legions of committed activists. This has been a long slog of a struggle.
The FCC's other major decision last week could set a precedent that in some ways may be as big of a deal as net neutrality. By preempting state laws that restrict community broadband in North Carolina and Tennessee, the FCC is opening the door for community broadband providers to expand their services. If fully enacted in some 20 states where such laws are hindering the rise of municipal broadband, this regulatory intervention has the potential to dramatically increase competition and enable new public models for Internet services.
The battle continues. The history of media reform tells us that if we ignore core systemic problems like the power of monopolies and the lack of structural diversity, important protections like net neutrality can be short-lived. Anti-net neutrality forces will no doubt try to chip away at it once public attention wanes. This calls for continued vigilance; we cannot declare victory and tune out. Structural alternatives to the Internet monopolies are still needed. The battle for Internet freedom has only just begun.
How will Donald Trump’s first 100 days impact YOU? Subscribe, choose the community that you most identify with or want to learn more about and we’ll send you the news that matters most once a week throughout Trump’s first 100 days in office. Learn more