Net Neutrality Day of Action Rallies Proponents; Views Differ on Title II, Impact of Protest

Internet giants and others joined to oppose FCC plans to undo the 2015 net neutrality order reclassifying broadband providers as common carriers under Communications Act Title II. Day of Action (DOA) participants urged people to tell the commission and Congress to preserve net neutrality and an open internet, though edge companies didn't emphasize Title II (and ISPs opposed its use). Some doubted FCC Republicans would change course, but net neutrality advocates said the protest boosted resistance that complicates the rollback efforts and advances their cause.

The protest drew opposing reactions from congressional Republicans and Democrats. Senate Commerce Committee Chairman John Thune, R-S.D., was one of several Republicans who used it to revive calls for legislation to fully address net neutrality. House Communications Subcommittee ranking member Mike Doyle, D-Pa., told us he and other House Democrats plan to push back against an FCC net neutrality rollback via congressional oversight. Net neutrality “will be a main topic of discussion” at House Commerce's yet-to-be-scheduled FCC oversight hearing “whether they want it to be or not,” Doyle said. “It's been far too long since we've had the FCC up in front of us. When we were in charge, they were up there frequently.” House Communications Chairman Marsha Blackburn, R-Tenn., promised last month to hold an FCC oversight hearing before the end of July (see 1706210059).

DOA organizers said some large players were reticent to sign on initially. "Big companies always take longer to make any kind of decision, it's the nature of being a bigger institution,” said a spokesman for Fight for the Future. Most did come around, he said. A few like Microsoft didn’t join. Demand Progress was the other group that did much of the work in recruiting companies to join the protest, supporters said.

"Public interest groups, websites, companies, trade associations, entrepreneurs, video creators, social media fans, and thousands of consumers" joined "in the world’s largest online protest to save the internet," said Public Knowledge, which opposed FCC Chairman Ajit Pai's move to "gut" net neutrality. PK cited Airbnb, Reddit, Netflix, Automattic, AdBlock, Deviant Art, Yelp, Twitter, Amazon, Facebook, Google, Medium and others as participating in the protest. Incompas also joined. Wednesday "marks the beginning of a massive pushback against the effort to remove essential net neutrality protections," said PK Vice President Chris Lewis in a release linking to a DOA site.

Parties posted messages on their websites or contacted users. "Net neutrality is in real jeopardy, and we’re banding together in support of strong net neutrality rules," said the Internet Association. Google said it sent an email to its "community" warning that "net neutrality rules that protect the open internet are in danger of being dismantled." EBay opposes efforts to allow ISP "Pay to Play" arrangements. Twitter put up a #NetNeutrality hashtag with a spinning wheel of death emoji attached. "Join the Fight for #Net Neutrality," it blogged, including a link for filing comments. PornHub warned users: “SLOW PORN SUCKS.”

There were 688,848 filings posted Wednesday at the FCC in docket 17-108 by late afternoon, pushing the cumulative total to over 6.7 million. More than 400,000 were filed both Monday and Tuesday, while just 15,701 were filed Friday, with daily totals below 10,000 in late June. Commissioner Mignon Clyburn said she was "excited" that so many "are speaking out with a unified voice in favor of strong net neutrality rules grounded in Title II." Former Commissioner Michael Copps said net neutrality proponents were "mobilizing for victory" over "the Trump Administration's fake net neutrality scheme."

Optimism

Some supporters of the 2015 Title II order told us they see some room for optimism.

Pai is "kidding himself if he thinks he can adopt weak rules under Title I and that people won’t notice,” said Gigi Sohn, an aide when the order was adopted to then-chairman Tom Wheeler. If the rules use “phrases like harmful paid prioritization,” supporters of the 2015 order won’t be happy, she said. “Maybe what he’s thinking about doing … is saying ‘alright, I’ll adopt rules, and if they fall they fall, but I tried my level best, but the thing I did was reclassify and that’s the thing that’s most important.’” Pai didn't comment.

"I’m very optimistic it will have an impact on Congress," said Lisa Hayes, general counsel of the Center for Democracy & Technology, another DOA organizer. "I'm also hopeful it will result in high-caliber comments being filed."

“Today is making it very clear to congressional Republicans that this issue is a major loser for them,” said Harold Feld, PK senior vice president. “Republicans were burned once already by underestimating the pushback to repealing the privacy rules. This protest goes well beyond progressive groups or traditional internet players. Furthermore, despite a truly massive effort … to rally the faithful, there is no indicator that the conservative base is interested in rallying to Pai's defense. To the contrary, net neutrality remains fairly popular with Republicans.” If Pai sticks to his schedule, a court decision on an appeal likely would come out just before the 2018 elections, a potential problem for Republicans, Feld said.

Skepticism

Some doubt DOA changes much at the FCC. Cowen analyst Paul Gallant said the FCC likely still plans to roll back broadband net neutrality regulation under Title II. He said Pai's views "are deeply held" and "sync perfectly" with President Donald Trump's anti-regulation objectives. "Barring a personal appeal from President Trump himself ... we don't see the Republican FCC's trajectory changing. We expect a fourth quarter vote at the FCC that reclassifies broadband under Title 1 and eliminates the net neutrality rules," he wrote. He said public pressure could harden congressional Democrats' opposition to a legislative compromise, which is the "ultimate" objective of telcos and cable.

AT&T Senior Executive Vice President Bob Quinn was also skeptical public pressure would convince FCC Republicans to back off reversing Title II regulation. "You've gotta count votes ... and my expectation is they'll hew to their prior views," he said Tuesday, backing net neutrality legislation without Title II and noting AT&T was joining the DOA without coordinating with organizers (see 1707110019). Quinn Wednesday emailed employees asking for help in encouraging Congress and the FCC to adopt lasting open internet rules.

Verizon asked people to urge Congress to pass net neutrality legislation without "1930s utility legislation on ISPs," blogged Senior Vice President Will Johnson. CenturyLink Senior Vice President John Jones blogged: "Keep the Internet Open and Free -- Without Regulation." USTelecom CEO Jonathan Spalter blogged that "large powerful internet companies" backing the DOA were "protecting their bottom lines." Amazon, Facebook and Google want the FCC to regulate ISPs as "Title II telephone utilities, even though they don't believe in operating neutral networks themselves," blogged Chairman Scott Cleland of ISP-backed NetCompetition. The American Cable Association backs an open internet that "promotes broadband and edge investment and innovation." The Internet Innovation Alliance called for codifying the 2010 open internet order.

"The posture of this debate has changed dramatically in the last seven years," said Robert McDowell of Mobile Future. "Groups that were steadfastly opposed to any rules in this space now want to find common ground to build a legal construct to keep the internet open ... without using an antiquated statute like Title II. Ideally, they'd prefer Congress to act."

Hill Reaction

“All the parties to this issue benefit if we come up with some clear rules of the road that provide the protections that people want and ensure that we've got an open internet for the future," Thune told reporters. He also called, in a recode opinion piece, for bipartisan net neutrality legislation. House Commerce Committee Chairman Greg Walden, R-Ore., urged House Democrats and net neutrality stakeholders to “come to the table and work with us on bipartisan legislation that preserves an open internet while not discouraging the investments necessary to fully connect all Americans.”

Congressional Democrats were unified in pushing against the NPRM and many resisted calls for legislation in the face of a likely court challenge of a rollback of the 2015 rules. “Today we begin the next big battle” on net neutrality,” said Sen. Ron Wyden, D-Ore., during a rally on the Capitol grounds with other Democratic lawmakers and groups supportive of the 2015 order. “Our goal is to win” at the FCC if at all possible, Sen. Ed Markey, D-Mass., told reporters: “We believe we have a very strong case in the courts” if the FCC does move to repeal the 2015 rules as expected, citing his conversations with experts.

Doyle and House Commerce ranking member Frank Pallone, D-N.J., claimed in a Wednesday letter to Walden and Blackburn that the hearing hadn't been scheduled because House Republicans are attempting to “shield the FCC from having to explain its push” for a net neutrality rollback and other “unpopular policies.” Commerce is still working to schedule the hearing, and committee Democrats are “fully aware of our efforts, making today’s letter little more than political grandstanding,” a Commerce spokesman said. “We will continue in our efforts to collaborate with them as we finalize details for this hearing.”

Net Neutrality Notebook

Pai told Wyden and Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, he's confident FCC computer systems would hold up to any net neutrality comment onslaught. FCC IT staffers “have taken additional measures to safeguard our comment filing system" and "will be on high alert over the next 48 hours,” Pai wrote the senators Tuesday in response to their concerns about the agency's cybersecurity defenses against a repeat of a May distributed denial-of-service attack against its electronic comment filing system application program interface (see 1705090063, 1706280044 and 1707100041).

The FCC’s plan to repeal Title II and net neutrality rules “poses a significant risk of stifling American innovation and harming local economies across the country,” wrote 50 mayors in a Wednesday letter to Pai. Represented cities included Boston, Chicago, New York, San Francisco, Seattle and Washington, with Democratic mayors. Full repeal would especially hurt tech startups and working- and middle-class families, the mayors wrote.