Heads Up, Nonprofits! The Net Neutrality Vote Is Today!

December 14, 2017; NPR, “The Two-Way” and Fortune

After years of fighting and months of debate, the Federal Communications Commission (FCC) is scheduled to vote today, December 14, 2017, at 10:30 a.m. Eastern, on whether to repeal the protections put in place in 2015 to safeguard net neutrality and revert broadband Internet companies to “information services” from their current status as Title II “common carrier” utilities. So far, support for this move has fallen along party lines, and under Trump’s FCC chair, Ajit Pai, the Commission now leans 3-2 Republican, which means today’s vote is almost certain to pass.

Under the current state of “net neutrality,” Internet service providers (ISPs) must treat all online traffic equally. They are prohibited from blocking user access to specific sites, intentionally slowing down the speed at which those sites are accessed (“throttling”), or privileging access to specific other sites through the use of “fast lanes.”

In 2015, the FCC under then-chair Tom Wheeler asserted that broadband high-speed Internet access qualified as a Title II utility under the Telecommunications Act of 1996, as essential to modern life as phone service or electricity. […] This ruling withstood a number of legal challenges, and even as the Republicans on the Commission rallied with representatives from Comcast, AT&T, and Verizon to undo it, popular support for the measure remained strong, from advocacy groups like the Electronic Freedom Foundation (EFF) and Fight for the Future (FFTF) to Internet giants like Netflix.

The full text of the FCCs order is available here. Under its terms, net neutrality would become a voluntary affair, with government enforcement coming only via the Federal Trade Commission. So long as they disclosed their practices, ISPs could throttle, block, boost, or bundle access to sites at their discretion. What’s more, according to studies done by the Institute for Local Self Reliance using the FCC’s own data, 40 percent of Americans have only one broadband provider that serves their area, meaning millions of people don’t have a market-based solution to this issue; it’s either use that ISP or nothing.

Organizations like Fight for the Future in Worcester, Mass., have encouraged those who oppose the rollback to send their opinions to the FCC and to Congress. However, the sheer volume of commentary has drawn controversy of its own. Because of organized campaigns and form letters, the same comments have been posted hundreds of thousands—sometimes millions—of times. What’s more, Attorney General Eric T. Schneiderman of New York has uncovered that as many as 2 million or more comments are “fake,” being generated procedurally by Internet bots using the names of area cable subscribers. Pew Research found that sometimes “tens of thousands of comments would come in at the same time.”

Democratic FCC Commissioner Jessica Rosenworcel said half a million of the fake comments originated from Russian email addresses. She said the issue with the FCC comments calls into question the integrity of the entire public comment process, across the government.

“Agencies open up their doors, in effect ask the American people to tell them what they think about proposed rules, how their lives might be changed by them,” she said. “It is essential that we come up with ways to manage the integrity of that process in the digital age.”

A.G. Schneiderman says that Commissioner Pai has “refused multiple requests for crucial evidence in its sole possession” that could help law enforcement in pursuing this matter.

Despite calls from Rosenworcel, Schneiderman, and 28 Democratic senators to delay the vote while these allegations of fraud are investigated, the FCC intends to go forward. Rep. Sean Patrick Maloney (D-NY) has, at very nearly the last minute, introduced the Save Net Neutrality Act (H.R. 4585), which says that since the comment process was corrupted by electronic manipulation, the FCC should have to start again with its Notice of Proposed Rulemaking in order to undo the Title II classification of broadband Internet. Although the measure is not without some GOP support, the legislation is mainly a symbolic gesture, since there’s simply not enough time for it to reach the floor, be discussed, voted upon, and signed by President Trump before today’s FCC vote. On the Republican side, Sen. John Thune (R-SD) has said he favors the doctrine of net neutrality and hopes that some bipartisan legislation to preserve it can be made. However, he nevertheless supports the FCC’s move to reverse the Title II classification.

Brandi Collins, senior campaign director for Color of Change, spoke on the potential impact to activists and those who rely on an open, unencumbered Internet to organize and effect change:

This week’s FCC vote to destroy net neutrality is a threat to twenty-first century civil rights. Our free and open Internet was built on net neutrality, and Chairman Pai and the Trump administration’s decision to join hands with the telecom industry to dismantle net neutrality will forever alter the Internet as we know it. Without net neutrality, everyday users will experience an Internet where access to some of their favorite online services is slowed to a snail’s pace and countless Black activists and other social justice advocates will find their voices silenced because they can’t pay Internet service providers for faster bandwidths. In short, the Trump administration and the telecom industry are colluding to eviscerate equal access to the Internet and boost corporate profits at the expense of everyday Internet users. This outcome is unacceptable and Chairman Pai should heed the calls of the millions of Americans who have demanded the preservation of net neutrality and cancel this disastrous vote.

Should the vote go as expected, nonprofit groups are already preparing to challenge the measure in court. According to Reuters, “at least three public interest groups—Public Knowledge, Common Cause, and Free Press… are preparing to turn to litigation.” Malkia A. Cyril, executive director for the Center for Media Justice, says,

The Federal Communications Commission’s vote to repeal net neutrality rules is a devastating blow to the civil rights of anyone who depends on the Internet to thrive in the 21st century. From movements against police brutality and for immigrant rights, or the artists and entrepreneurs trying to connect to a broader audience and the struggling families just trying to stay connected to each other—our democracy, economy and communities will all suffer from this attack on our free speech.

But we won’t suffer in silence. The Center for Media Justice will join dozens of other digital rights champions to take Ajit Pai’s FCC to court to win back our digital voice. We’ll take action in the street if we have to, and do whatever is necessary to preserve the right of communication for communities of color, and all those with voices at the margins who, now more than ever, need to be heard. Ajit Pai does not speak for the majority of people in the U.S., he definitely doesn’t speak for me.

And in a prepared statement, the EFF said,

The FCC’s decision to abandon its traditional role in protecting an open and free Internet will go down as one of the biggest mistakes in Internet policy history. Today, a majority of Americans have only one choice for high-speed Internet. Those users can’t rely on competition to protect them from unfair practices: without the Open Internet Order, they will be at the mercy of the newly empowered Internet gatekeepers. EFF will fight in the courts, in the states, and in Congress to restore these critical rules.

Groups like Fight for the Future have long positioned this struggle as the “Battle for the Net.” With today’s vote, the tides of that battle have turned and are likely to leave titans like Comcast and Verizon as its victors. Let’s see what the future holds.—Jason Schneiderman

Despite our shared surname, I know of no connection between myself and New York’s attorney general.—JS