While hundreds of activists rallied outside the Federal Communications Commission (FCC) and millions more held their breath, FCC commissioners voted 3-2 to give the keys of the internet to the Telecoms without charging them a single dime. Verizon, AT&T, Sprint, T-Mobile and Comcast got permission to take control of the crown jewel of U.S. communications and with it, draw up their own policies in providing services to customers. The Telecoms could conceivably end or limit access to websites of their choosing, create fast lanes for higher paying “priority” customers and/or slow down (throttle) data to lower priority customers.
Internet advocates did raise enough public interest to submit millions of comments to the FCC, urging them not to end Internet Freedom. The public also made over a million phone calls to congressional offices, demanding their representatives keep the internet free and open with equal access to all users.
Surely those comments and calls wouldn’t fall on deaf ears. But that’s exactly what happened Thursday. Led by Ajit Pai, the FCC voted along party lines to gut Title II regulations of the Communications Act of 1934. The vote was in keeping with the Trump administration’s agenda to deregulate wherever possible, ceding any public good to corporations.
Internet advocates have been warning since 2014 what this vote would do to public information access, small businesses viability, tech innovation and free speech. When then FCC Commissioner Tom Wheeler first proposed ending Net Neutrality in 2014, advocates succeeded in leveraging political support through grassroots organizing to keep the FCC from stripping Title II in 2015. The internet was saved.
But this time, grassroots organizing fell short. Net advocates were unable to navigate the new playing field at the FCC when Trump appointees tilted it sharply in favor of the Telecoms.
FCC Commissioner Ajai Pai was at the FCC in 2014 and witnessed what pitfalls he needed to avoid and how he needed to get ready for the storm of Net Neutrality advocates who would return in 2017. Ajai Pai was previously a lawyer for Verizon, which will benefit if Title II deregulation survives the coming court battles and subsequent votes in Congress to affirm the FCC vote. Pai is certain to have a job waiting for him once he leaves the FCC.
Options For Challenging FCC Vote
Don’t panic. The internet isn’t dead yet.
Anticipating this vote, the NY State District Attorney Eric Schneiderman, had already filed a lawsuit against the vote within minutes of the FCC vote. This suit was joined by several other states. It will tie up Title II deregulation in federal court for the rest of 2017 and into 2018.
The Government Accounting Office already has been sent a congressional request to investigate the FCC over a Distributed Denial of Service (DDoS) attack it claimed occurred during a peak in comments prompted by a parody skit by John Oliver. It was the second time the comedian spoofed FCC attempts to gut Title II. It worked in 2014, helping to draw in millions of open internet supporters.
The FCC dragged its feet in releasing data about the DDoS attack in an FOIA request. The GAO has not finished its investigation and has yet to release its report to Congress.
Another possible way to gain traction to roll back the FCC vote is known as the Congressional Review Act (CRA). Congress could conceivably vote to force the FCC to return Title II to its previous language under this act. But the public pressure would have to be intense to get the Republican-led Senate and House to go this route. And it’s not likely this would happen, according to Kevin Zeese of Popular Resistance.
Nearly 83% of the public supports Net Neutrality, according to a poll conducted by the Program for Public Consultation at the University of Maryland. The poll found that 75% of Republicans, 86% of Independents, and 89% of Democrats oppose ending Net Neutrality. With a national consensus in favor of Net Neutrality, it’s a risky move politically for Congress to vote in support of the FCC vote.
There are grounds to file additional lawsuits. An analysis by data scientists at the Pew Center showed that only 6% of the comments contained unique language. Most comments were robo-generated and of those, 37% that were in support of ending Net Neutrality were sent from seven email addresses using similar language, according to the report. And one significant anomaly in the data showed thousands were sent at the same time.
Another area of concern involves submissions of comments using emails not authorized by the owners. The emails were allegedly stolen, according to a lawsuit filed in New York District Court. “Millions of fake comments have corrupted the FCC public process – including two million that stole the identities of real people, a crime under New York law,” said Attorney General Schneiderman in a letter published December 13.
Open internet advocates must leverage the overwhelming bipartisan national support they’ve gained and convert it into political power. They will have to stir up public interest enough to make it too toxic for Congress to support the FCC vote. They succeeded brilliantly in 2015, even when the odds were stacked against them. The question is, can it be done again?