It’s Not About “Can We?” It’s About “Will We?”

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This post was first published by the Benton Foundation and Common Cause.

Public comments are due Tuesday regarding the Federal Communication Commission’s (FCC) proposed rules for Net neutrality. Much of the focus will be on arcane legalisms, the particulars of various court decisions, and the confounding twists and turns of FCC regulatory oversight (or lack thereof). This is all well and good, and based on more than a decade tracking such minutiae as a member of the FCC, I am confident that those of us favoring a real Open Internet will have much the better detailed arguments to put forward. But it’s more — much more — than that.

Before getting to the elephant-in-the-room issue, let’s put aside all the wringing of the hands we constantly confront about how difficult this decision is going to be. The Commission clearly erred when it decided more than a decade ago that broadband — the essential infrastructure on which the Internet rides — wasn’t telecommunications at all and therefore customers were not entitled to the kinds of consumer protections guaranteed to traditional telephone users. So the Commission yanked broadband out of Title II of the Telecommunications Act and put it where there were no guarantees or even provisions for universal service across the land (rural as well as urban), reasonable prices, rights to privacy, and assurances for public safety.

The courts, all the way to the Supremes, have made it crystal clear that the Commission can change course if it has good reason to do so.
The easiest way to fix this would be for the FCC to fess up to a whopping mistake. The courts, all the way to the Supremes, have made it crystal clear that the Commission can change course if it has good reason to do so. Surely the Commission has good reason here: its regulatory reclassification of a decade ago has encouraged the take-over of broadband telecommunications by a few huge Internet Service Providers (ISPs) who are able to extract monopoly-like prices in most markets and to exercise gatekeeper control over the Internet coming into our homes and businesses. The DC Circuit Court of Appeals recently told the FCC that if the agency wishes to treat broadband as a common carrier service, it should call it one. So the transgressions of those earlier Commissions need not deflect the present Commission from correcting the sins of its fathers.

If the FCC cannot bring itself to admit agency error or human fallibility, there’s another way to fix this. The industry has changed so dramatically over the past decade that it bears little resemblance to how it looked back then. In those days we didn’t buy our broadband from our ISPs; we dialed into the likes of CompuServe and Prodigy rather than getting it directly from the big phone and cable companies which own it now. That’s a major change. These are clearly telecommunications companies. Plus all the vaunted hoopla about “intermodal competition” where cable would compete with DSL and fiber and wireless never came to pass. Instead the big companies converged into looking just like one another, delivering landline phone service, wireless, fiber broadband, and now they’re even thinking about taking over satellite broadband, too. This is not the same, or even similar, industry that the FCC was looking at when it walked away from its telecommunications oversight responsibilities. A realistic overview of how the industry and the market have changed would demonstrate the compelling need for the Commission to assert its broadband oversight. It’s another way out of the problem.

Where there’s a will, there’s a way, they say. Here we know the way; it’s just a question of will. Taking on the big guys with all their lobbies, money and office-holding friends is never easy. But when your willingness to do so is what will determine your legacy as a decision-maker, hopefully the challenge becomes less daunting. And make no mistake: the historical reputation of the Wheeler FCC rides on the pending Open Internet decision. Everything else is subplot.

So tell the FCC you demand an Open Internet and that you won’t settle for less. Join the hundreds of thousands of your fellow citizens who have already done so. Take action here, right away.

Because it all comes back to democracy!

Zyheira Scroggins, 9, left, and Camaria Gray, 9, using the computer lab at the DC Promise Neighborhood Initiative (DCPNI) after-school center in the Kenilworth-Parkside neighborhood of Washington. (AP Photo/Charles Dharapak)

Zyheira Scroggins, 9, left, and Camaria Gray, 9, using the computer lab at the DC Promise Neighborhood Initiative (DCPNI) after-school center in the Kenilworth-Parkside neighborhood of Washington. (AP Photo/Charles Dharapak)

The reason why it’s so important is not because of legalisms, court decisions and the intricacies of agency rule-making. It’s about so much more than that. It’s about making sure the technology wonder of our age works for all our citizens. It’s about creating opportunity. It’s about making sure that a handful of huge businesses don’t exert more power than they should over how, what, and even whether we communicate. It’s about free expression and civic engagement suffering on a gated Internet. It’s about democracy and how we sustain it.

So as we prepare to read all the comments that will be streaming into the FCC during this week, let’s put the big picture first. Make this your backdrop for all the fine points you are asked to consider. Ask yourself some questions. Should only a privileged few have access to a fast-lane Internet while the vast majority of us are consigned to slow lanes? Should a handful of mega-telecommunications firms have the power to block, impede, or otherwise degrade content and web sites and organizations they may not like, while they favor their own affiliates and friends? Should they be able to choose what news you receive and to decide which stories you won’t see? Why, in this Age of the Internet, should a few providers be able to truncate our civic dialogue even as technology gives us such a powerful tool to expand it? An Internet controlled by and for the few discriminates against the rights of the many, not just as consumers but, more importantly, as citizens. In an era when access to a high-speed, high value Internet increasingly determines how we find good jobs, care for our health, educate our kids, and inform ourselves about the critical issues confronting our democracy, why don’t we consider this access a basic civil right? I do.

Additional Resources

» File your public comment using this handy form from Common Cause.

» Save the Internet has a sample script, an email petition and instructions on how to call Wheeler and request that the chairman abandon his proposal.

» Using’s We the People site, critics of the new proposal have also launched a petition, calling for “nothing less than complete neutrality in our communication channels.” It already has over 40,000 signatures.

» A second petition asks the FCC to reclassify broadband as a regulated common-carrier service, which means it would have to be open to all, and serve all customers without discrimination. Currently broadband is classified as an information service, a category that gives the FCC a fairly limited set of regulatory options.

» There are a number of other organizations that are working on maintaining Net neutrality, including: AccessCREDO ActionDemand ProgressFight for the FutureFree PressOpen Technology InstitutePublic KnowledgeVoices for Internet Freedom

Michael Copps is a former commissioner and acting chairman of the Federal Communications Commission, where he served from 2001–11. He serves on the board of Free Press and the Free Press Action Fund and is a special adviser to Common Cause. Follow him on Twitter: @coppsm.

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