From legal briefs to pithy one-liners, the public is having its say on the proposed rules that guide how digital bits flow across the Internet.
As of early last week, there were about 780,000 comments, far more than for any previous rule-making proceeding before the Federal Communications Commission. The agency is fine-tuning its rules to secure an open Internet, after a federal court decision in January said it had to rethink its approach.
After the court ruling, Tom Wheeler, chairman of the FCC, proposed a path in step with the court ruling that would explicitly allow “commercially reasonable” deals. Such deals are typically for faster streaming of Internet content between broadband operators – phone and cable companies like Verizon, AT&T and Comcast – and online media distributors like Netflix and Google’s YouTube.
Wheeler’s plan, according to its many critics, would open the door to a two-tier Internet of fast and slow lanes, with affluent companies and households enjoying premium service and everyone else fighting traffic: a death knell for the open Internet and its democratic ethos of “net neutrality.”
Kevin Werbach, a former FCC counsel and an associate professor at the Wharton School of the University of Pennsylvania, said, “The way this has been framed for a lot of people is that the FCC is trying to change the Internet as we know it.”
Wheeler, who has been a lobbyist for the cable and telecommunications industries, has said that will not be the case, and that the agency will set a “high bar” for commercially reasonable arrangements. He has also said he is open to other ways to both accommodate the court ruling and maintain an open Internet, and the FCC has welcomed public comments.
The deadline for the first round of comments was extended to last Friday. A second period for so-called reply comments will run until Sept. 10.
A sampling of the many thousands of individual comments posted on the commission’s website is heavily weighted toward urging the FCC to take strong action to preserve net neutrality and criticizing Wheeler’s proposal as not doing that.
“Net neutrality is crucial to fair competition and free speech,” Maya Cook wrote, “and this proposal is a disaster in the making.”
There is an anti-corporate tinge to many comments, mainly directed toward the phone and cable companies.
“Any regulation that would allow soulless, noncitizen corporations to monetarily benefit at the expense of lawful citizens whom the government serves should not be enacted,” Michael W. Derington wrote.
The individual submissions also underline the success of get-out-the-comments advocacy efforts like the website Battleforthe.net, which allows supporters to type in their name and email address and submit a form letter that begins, “Net neutrality is the First Amendment of the Internet.”
The court-ordered retooling of the commission’s “Open Internet Order” of 2010 has touched off a surge in lobbying efforts by two sets of big corporations – Internet companies on one side, phone and cable companies on the other.
The Internet companies routinely make deals for improved treatment of their media content with network operators, so consumers get better, faster service. But new rules from the FCC could improve the bargaining position of one side or the other by shifting the competitive landscape.
In that sense, the FCC is a referee in price negotiations between two camps of powerful, deep-pocketed corporations.
The two sides have made their stances clear in their formal comments to the commission.
The Internet Association, whose members include Google, Facebook, Netflix and Amazon, stated that today’s Internet is an “engine of economic growth, innovation and democratic values,” which it termed a “virtuous circle.”
It added that “the Internet’s continued success is not inevitable,” saying that “broadband Internet access providers continue to have the ability and the incentive” to interrupt that engine.
In a statement, Michael Beckerman, president of the Internet Association, said, “The FCC must act to create strong, enforceable net neutrality rules and apply them equally to both wireless and wireline providers.”
The phone and cable companies, by contrast, are resisting what they call “prescriptive rules,” as Verizon described possible constraints in a comment. The broadband network operators agree that the Internet is thriving, and thus, according to a Verizon comment, that “there is little call for regulators to intervene,” other than on a case-by-case basis.
What the phone and cable companies most fear is an option open to the FCC: to oversee the Internet under its Title II authority. That would mean declaring the Internet a common carrier, a utility, which they say would be a misguided overreaction.
In a recent blog post, James W. Cicconi, senior executive vice president for external and legislative affairs at AT&T, said the price-gouging tactics the industry’s critics fear were “unlikely hypotheticals” that the phone and cable companies pledged not to do as the FCC grappled with this issue in 2010.
“Not a single Internet service provider then or now has asserted a desire or right to engage in any of these practices,” Cicconi wrote, “to create ‘fast lanes and slow lanes.’ ”
The outpouring of public comments extends well beyond the details of the FCC’s regulatory authority or the lobbying of major corporations, said Tim Wu, a professor at the Columbia Law School who helped create the concept of net neutrality.
“This is about a fear of closing of the technological frontier,” Wu said, “of the fear of the Internet becoming too corporatized – no longer this place where even if you start small, you do have a fighting chance.”
The FCC is expected to make a decision on open Internet rules by the end of 2014 or early 2015. Whatever the commissioners eventually decide, one thing is likely: Their decision will face a legal challenge. It was a suit by Verizon that led to the court ruling earlier this year.