In a landmark decision today, the FCC voted 3-2 to create enforceable, bright-line rules protecting the open internet using their Title II authority to reclassify broadband internet as a telecommunications service.
The commission’s order creates three bright-line rules:
- Broadband providers may not block access to legal content, applications, services, or non-harmful devices.
- They may not impair or degrade lawful internet traffic on the basis of content, application, services, or any classes thereof.
- They may not favor some internet traffic over other internet traffic in exchange for consideration of any kind — no paid prioritization or fast lanes.
Chairman Tom Wheeler, along with Commissioners Mignon Clyburn and Jessica Rosenworcel, voted in favor of the measure. Commissioners Ajit Pai and Michael O’Rielly dissented.
As in the other measure the FCC determined earlier today, the commissioners all spoke in turn, explaining why they approved or rejected the measure.
Commissioner Clyburn spoke first, framing the matter in terms of fundamental rights. “James Madison gave life to the First Amendment in a scant 45 words… which are fundamental to the spirit of this great nation,” Clyburn said. “So here we are, 224 years later, at a pivotal fork in the road, poised to preserve those very same virtues of a democratic society: free speech, freedom of religion, a free press, freedom of assembly, and a functioning free market,” the last of which is not actually part of the First Amendment.
Clyburn also stressed repeatedly that the open internet rule needs to apply equally to mobile and wired broadband, referring to the millions of low-income Americans who use the internet primarily or solely on mobile devices. “They need,” she asserted, “They deserve, a robust experience on par with their wired peers.”
At the end of her remarks, Clyburn also added, “I have been struck by how much rhetoric in this proceeding is completely divorced from reality. While as a rule I generally refrain from responding in these cases, I must address concerns about rate regulation.” Referring to another FCC proceeding about rate reform in prison inmate calling, Clyburn reminded watchers that the FCC has been hesitant at best ever, under any circumstances, to stick their finger in that particular beehive.
“And lest we forget,” she concluded, “over 700 small broadband providers in rural America [already] offer broadband internet access pursuant to the full panoply of Title II regulations. They contribute to universal service and, amazingly, the sky has not fallen. Things are okay.”
Commissioner Rosenworcel spoke next, promising to be brief. “We have a duty,” she said, “A duty to protect what has made the internet the most dynamic platform for free speech ever invented. It is our printing press. It is our town square. It is our individual soap box and our shared platform for opportunity.”
“That,” she concluded, “is why open internet policies matter. That is why I support network neutrality.”
Rosenworcel was followed by Commissioner Pai, who seemed to be unaware that the filibuster is not actually part of the FCC’s rulemaking process. In his 30-minute long speech, Pai — who has repeatedly condemned Wheeler’s proposal for its length — went straight for the political jugular, playing an audio clip of President Obama’s call for the FCC to reclassify broadband from last November and thereafter referring to the proceeding as “Obama’s plan to regulate the internet.”
Pai claimed that the FCC will put harmful rate regulations in place, directly contradicting the earlier remarks from commissioner Clyburn. He also referenced the “new taxes and fees that will be applied to broadband,” adding, “read my lips: more new taxes are coming,” despite that claim being both false and repeatedly disproven.
The reference to one of President George H. W. Bush’s most famous campaign lines did not stand alone; Pai also repeatedly referenced anti-regulation statements from the Reagan administration.
Pai also asserted, in one of his more convoluted arguments, that since the regulatory change will result in money spent on trial lawyers, that American taxpayers are going to have to pay more for slower service because the money has to come from somewhere, and that therefore we will all return to the monopoly Ma Bell era, reframed as “Pa Broadband,” because smaller companies will not be able to continue to afford to provide service after they spend all their money suing the FCC over new regulations.
Pai did not suggest another solution, which is that ISPs could not spend millions of dollars and millions of hours filing lawsuits to overturn consumer protections.
Commissioner O’Rielly, who also missed the memo that filibusters are only for Congress, delivered his 20-minute remarks next. He joined Pai in hating basically everything about the process, from the fact that the FCC exists to the fact that it makes rules to the fact that it would dare to use Title II “to protect against hypothetical harms.”
O’Rielly suggested the FCC focus their efforts elsewhere. “I’m far more concerned about Americans that will remain unserved as a result of our rules,” he said.
“Forget about open internet — they have no internet. We need to be focused on ways to promote deployment, and not in some roundabout virtuous cycle way but through proven deregulatory measures,” said O’Rielly, who just an hour earlier vehemently voted against allowing entities wishing to deploy broadband to get past existing regulation to do so.
O’Reilly repeatedly invoked his invented term “fauxbearance” to assert that the current plan, and all of the forbearance in it, is invalid and that the FCC in the future will probably undertake harmful changes. He also added that although “the item repeatedly disavows any present intent to adopt rate regulations, banning paid prioritization itself is a form of rate regulation.”
O’Reilly and Pai both also promised that their full written statements would be significantly longer and more detailed than their oral remarks.
Wheeler once again spoke last. He began by referring to, and thanking, the 4 million Americans who contacted the FCC with comments about net neutrality over the summer. Those comments, “illustrate the importance of an open and unfettered network and the role it plays as a core of free expression and democratic principles,” said Wheeler.
“The internet,” Wheeler emphasized to a round of applause from the audience, “is simply too important to allow broadband providers to be the ones making the rules.”
“This proposal has been described as a ‘secret plan to regulate the internet,’” Wheeler continued. “Nonsense! This is no more a plan to regulate the internet than the First Amendment is a plan to regulate free speech. They both stand for the same concept: openness, expression, and an absence of gate-keepers telling people what they can do, where they can go, and what they can think.”
“Today is a red-letter day for internet freedom,” he went on, before reiterating the three main “bright-line” pillars of the new rule and providing another brief overview of the details of the FCC’s authority.
“Today,” Wheeler concluded, “History is being made by a majority of this commission, as we vote for a fast, fair, and open internet,” before calling for the vote.
The change does not go into effect immediately. The new rule first must be published in the Federal Register, the timetable for which is managed by the National Archives. After publication in the Federal Register, it is likely to be at least another 30 days before today’s ruling goes into effect.
Of course, we have not heard the last of this conflict. Pai and O’Rielly were indeed correct that the big ISPs are already lining up to sue and have been warming up their arguments for months already.
FCC commissioners will deliver further statements in a set of press conferences later this afternoon.