Free Press and the History of the Net Neutrality Fight

If you listen to FCC Commissioner Brendan Carr, you might be tempted to believe some pretty unhinged ideas about internet policy.

You might believe that hundreds of millions of internet users don’t need a watchdog to protect them from abuses by the handful of unpopular companies like Comcast that wire internet access into U.S. homes. Or that the Title II rules that give this federal agency the teeth it needs to protect internet users from these companies are “just the sheep’s clothing,” cloaking the real intentions of a Democratic FCC: a government takeover of the internet, according to Carr.

And Carr isn’t alone.

He’s just the latest in a history of industry-aligned FCC officials who’ve taken it upon themselves to spread fear and uncertainty about any effort to regulate internet service providers — or ISPS — like AT&T, Comcast and Verizon. This list includes Bush-era FCC Chairman Michael Powell and Trump-era FCC Chairman Ajit Pai, industry men who — like Carr — became public servants in name only.

Free Press exists in part to counter officials like Carr, Pai and Powell, who see their FCC tenure as a stepping stone to higher-paying jobs in the industries they were appointed to regulate. Our organization has focused on holding them accountable for their every decision so that future agency officials feel the heat of public shame every time they put corporate wish lists over the needs of the American people.

For decades, Carr, Pai, Powell and other political appointees at the agency have done their level worst to paint any rule that safeguards the interests of online users as part of an elaborate Democratic-administration scheme to “assume control of the internet” (to quote Pai ) that “will lead to net fatality” (to quote Powell).

What’s lurking behind this alarmist rhetoric is the industry’s willingness to say anything to prevent the FCC from fulfilling its congressionally sanctioned role as watchdog for the public interest.

What is regulatory capture?

The history of U.S. media policy is one of “regulatory capture,” where lawmakers and regulators put the industry’s needs before those of everyday internet users. With legions of phone- and cable-company lawyers and lobbyists supporting them, administrators like Carr, Pai and Powell have acted as stenographers for the oligopoly of incumbents that controls broadband access. The policy positions that they adopt read as though the broadband industry’s top lobbyists wrote them.

This is the 20-year backdrop against which Free Press has fought for the rights of internet users. In 2002, then-FCC Chairman Powell fired an early salvo for Big Cable when he redefined cable-broadband access under Title I of the Communications Act. The move meant that the agency could no longer regulate high-speed internet services as common carriers; in other words, the FCC couldn’t force broadband providers like Comcast to treat all legal online content the same. By making this change, Powell opened the door for these companies to prioritize content that they liked (like information and services that they owned) over content that they didn’t (anything else).

Common carriage is at the center of the debate over the essential nature of the internet. A common-carriage rule requires that carriers treat all content the same, without favor or prejudice. For Free Press, this basic concept made common carriage a principle of substantial social value. Columbia University economist Eli Noam wrote in 1994 that common carriage “extends free speech principles to privately owned carriers. It is an arrangement that promotes interconnection, encourages competition, assists universal service and reduces transaction costs.”

Common carriage is a concept that is vital to people-powered media systems. It places each internet user in the driver’s seat, able to control their own network experience. Giving the FCC the authority to mandate common carriage ensures that people will have the power over this revolutionary technology and remain the primary forces behind online creativity, innovation and expression.  

Free Press was born at the same time that Chairman Powell was working behind the scenes to declaw his agency’s oversight of the broadband industry. In our founding documents we clearly stated our mission: “to promote public voices, participation and involvement in how media is used and governed.”

It was only a matter of time before Free Press and industry accomplices like Powell locked horns.

An invitation to action

Despite what captured FCC officials will tell you, applying a common-carriage standard to broadband access doesn’t amount to a government takeover of the internet. Common carriage is a successful legal framework functioning across the economy. It’s not some artifact of the 20th century’s landline-telephone system. It still applies to wireless carriers (like T-Mobile). It’s always applied to the more than 750 small rural carriers (like Iowa Network Services) offering DSL and fiber access under Title II. And it applies to other competitive markets as well — like airlines, private buses, parcel shipping, department-store elevators … even roller coasters.

None of these businesses are government-controlled utilities, nor are they monopolies. Many are very profitable — some extremely so.

To impose a common-carriage standard for essential internet access, the FCC would have to reverse Powell’s Title I classification and categorize broadband-access services under Title II of the Communications Act. In “Brand X,” a case brought by an early ISP, the Supreme Court  found, among other things, that the FCC has broad discretion to determine which regulatory definition applies to internet access.

That Supreme Court made it clear that this is the FCC’s decision to make. But the George W. Bush administration’s FCC used that discretion to reach the wrong conclusion, and surrendered the agency’s jurisdiction over broadband. 

For Free Press, Brand X was an invitation to action. By the end of 2005, we had sketched out a campaign plan that became the SaveTheInternet.com Coalition. We set a high bar for ourselves: Build a national movement around what was until then an obscure tech-policy debate.

At stake was the future of democratic communications — the question of who would ultimately have control over their online experiences: the people who use the internet or the powerful companies that sell access to the network.       

Genuine grassroots

In 2006, Free Press launched the coalition and began to invite partners to become a part of the initiative. We rallied behind the concept of Net Neutrality — calling it “the First Amendment of the Internet” — and pressured the FCC and Congress to make common-carriage rules permanent. Within months, the SaveTheInternet.com Coalition boasted hundreds of organizational members from across the political spectrum and nearly a million individual members.

We called on people to “use the internet to save the internet,” inspiring more than a million people to write or ring their members of Congress and urge them to kill the COPE Act of 2006, which would have overhauled the 1996 Telecommunications Act without common-carriage protections for internet users. But people did more than just that: They took our initial outreach and made the issue of Net Neutrality their own, taking to the internet and the streets to organize their own rallies.

It took a massive grassroots outcry to kill the COPE Act in 2006. It would take the growing movement for a people-powered internet nearly 10 more years of organizing to win an FCC ruling that made common carriage the rule of the road. Free Press mobilized millions of people everywhere from Anchorage to Atlanta, pushing the Obama FCC to ditch an industry-friendly plan in favor of one rooted in Title II. The agency’s 2015 Open Internet Order was the culmination of this dedicated collaborative effort.

On that wintry day in 2015, Free Press staffers and other Net Neutrality supporters emerged from the FCC to celebrate a stunning triumph. Our hard work resulted in a rare defeat for the cabal of powerful companies that too often dictate communications policy to our elected officials and appointed regulators. They’ve spent hundreds of millions of dollars on lobbyists, lawyers, think tanks and campaign contributions with one goal in mind: wresting control over digital communications from everyday internet users.

The 2015 victory was the result of the largest public response on a single policy issue in the FCC’s history (It was exceeded only in 2017, when the agency took up the issue again).

On the losing side, Carr, Pai and Powell nursed their wounds and later issued dismissive comments about the mass-public involvement in policymaking: Carr called it “one of the most Orwellian campaigns in regulatory history.” Pai called the 2015 decision “an aberration” and the movement in support of an open internet “fundamentally hostile to free speech.” Powell called the people speaking out in favor of open-internet protections “new-age Nostradamuses” who had unfounded fears of ISP abuses  (despite the well-documented history of companies like Comcast violating Net Neutrality).

In reality, Carr and other Beltway insiders were furious that the Net Neutrality movement had lifted the veil from policymaking and given the public a say. Amplifying the voices of people in the tech arena is “extremely toxic” to progress, an industry shill wrote at the time. He and others like him yearned for a return to the past, when public policy was forged behind closed doors in discussions between small groups of industry lawyers, lobbyists and administrators. You know … the experts.

A people-powered internet

Unfortunately, these experts got their way in 2017 after the FCC gained a Republican majority and Trump-appointed Chairman Pai rammed through a repeal of the Open Internet Order. To stop Pai’s plan, Free Press built new coalitions and worked together to organize more than 700 local protests outside Verizon stores and congressional offices nationwide. As co-leaders of the BattlefortheNet coalition, we mobilized millions of people to comment at the FCC, calling on Pai to heed the overwhelming public consensus in favor of keeping the 2015 Title II rules in place.

Pai, of course, simply ignored the public in favor of the powerful phone and cable lobby agenda; his repeal of the Open Internet Order was “the worst decision in the agency’s history,” I wrote, adding that the 2017 decision “ripped up not just the nondiscrimination rights embodied in the Net Neutrality rules, but the entire legal foundation for the FCC to promote broadband deployment, affordability and privacy.” 

Free Press’ work has since focused on winning the support of more members of Congress and getting a fully functional FCC in place under the Biden administration. We’ve since pushed the agency to complete a proceeding to reinstate the Net Neutrality rules Pai stripped away and restore Title II oversight so the FCC once again has the power to guard against ISP abuses.

Some time in the first half of 2024, a majority of commissioners at the federal agency is expected to vote to reclassify broadband providers under Title II and grant the FCC the authority it needs to enforce this standard.

The proposed rules don’t plot out a government takeover of the internet. Instead, they set forth regulations in a market where a few broadband providers dominate internet access. And a company like Comcast no more constitutes the internet than a lumber company like Weyerhaeuser represents the forest. That concept — of a decentralized and distributed internet — seems to boggle the senses of Carr, Pai and Powell, who’ve been conditioned to think of the internet as a private domain that the largest broadband providers should control.

20 years taking on Comcast and its proxies

When the FCC restores Title II oversight as expected, it will be a moment 20 years in the making. Net Neutrality as an issue has become a gateway to all sorts of activism on behalf of a people-powered internet.

Free Press has been there from the beginning. Since the FCC took up this matter, we’ve urged millions of people from across the political spectrum to call on the agency to protect the open internet, ensure that just and reasonable broadband services are available and reliable, and assert its authority to prevent broadband providers from harming internet users.

Our goal was never about getting faster download times or better gadgetry. The fight for an open internet at its core is about democracy: It’s about ensuring that people have the information they need to hold their leaders accountable — and the tools to have an impact on decisions shaping their lives. It’s about preventing so much power over information from falling into the hands of a few powerful companies. 

That is why saving the people’s internet is so important to Free Press: It might be our best and last chance to make an end-run around the media gatekeepers and their D.C. lobbyists and proxies. To save this internet we must demand a public seat at the table where decisions about its future are being made. 

By safeguarding the open internet, the Biden FCC is turning its back on the likes of Carr, Pai, Powell and anyone else seeking a return to closed-door policymaking as usual. This is welcome news and hopefully marks a significant shift away from industry capture toward publicly accountable policymaking.

Free Press will keep fighting to ensure that the FCC never returns to that dysfunctional past when agency officials ignored public opinions to parrot broadband-industry talking points and do Comcast’s bidding.

Help Free Press keep fighting for real Net Neutrality: Donate today.

Check out the other posts in our 20th-anniversary blog series.