Former FCC Chair Tom Wheeler: Net Neutrality Fight Destined For Courtroom

Image courtesy of Kate Cox

Despite millions of public comments and objections from businesses and consumer groups nationwide, the Trump administration’s FCC seems determined to go ahead and kill off net neutrality as soon as possible. While this rule, which prohibits internet service providers from having any say in what you do online, is likely headed for reversal in the months to come, it’s not dead yet, and former FCC Chair Tom Wheeler says it will likely be up to a court to decide if the rule gets discarded, which is why it’s important for supporters to get their concerns on the record.

Rep. Don Beyer of Virginia held a forum just outside of D.C. last night for his constituents to come learn and voice their concerns about the fate of net neutrality in. Though Beyer was the host, the real headliners of the event were Wheeler and former FCC general counsel Jon Sallet, who both spoke at length to a packed house about how we got to where we are today, with the rules under fire, and what consumers can still do to try and make their voices heard.

A couple key take-aways?

No Neutrality Without Title II

Wheeler first reviewed what net neutrality is, and why under his leadership the Commission used Title II to put the rule in place.

The Open Internet Order of 2015, he reminded the room, created three bright-line rules for the ISPs that carry your internet traffic: No blocking, no throttling, and no discrimination.

2015: FCC officially votes to protect net neutrality, reclassify broadband

The good news, Wheeler led off, is that the Open Internet Rules have been the law of the land since 2015. But now, “Their repeal is being championed by a handful of companies; you basically know who those companies are. Comcast, AT&T, Verizon, Charter — they’re the people that dominate access to the internet today.”

These days, as they attempt to have the rule reversed, the big companies — particularly Comcast, but also others — like to claim that they love net neutrality; it’s just Title II, the legal underpinning, that they can’t stand.

Wheeler, however, hoped his audience knew better.

“What I hope you’ll think about is that that legal term is a smokescreen for not having to discuss” the bright-line net neutrality principles, privacy guidelines, and the FCC’s oversight authority, he said.

“Those who are trying to overturn the rules want to talk about them in these [legalistic] terms, instead of talking about the effect of Title II.”

“We looked hard to see if there would be ways other than Title II to accomplish these goals,” Wheeler said. “They weren’t there.”

More: 4 misleading things ISPs need to stop claiming about net neutrality

For decades, Wheeler said, “The FCC has made decisions based on, ‘Is the activity that is occurring just and reasonable?'”

Wheeler explained that “just and reasonable” is a term of art — a phrase with a fixed, precise legal meaning — when it comes to telecommunications, then continued, “We need a set of rules to be able to look at actions … so that when they come to pass, you’re looking at it and you say, whoa, is that just and reasonable? And you can’t get there without Title II.”

Why Commenting Is Important

That the current FCC, under Chairman Ajit Pai, will eventually succeed in reversing the Open Internet Rule was something of a foregone conclusion in the room among presenters and the audience.

“The Trump FCC has announced in no uncertain terms that they intend to repeal the rules that are now in place, at the request of these handful of companies,” Wheeler said. “They got a letter the other day [it was in April] from 800 entrepreneurs saying, ‘you can’t do that, because you’ll threaten our access, our ability to have access to reach consumers. We’ll have to go to say, mother may I to be able to get on the networks. we won’t be able to compete.'”

“Eight hundred vs four,” he added. “The other number is that there is a majority at the FCC. That is now a Republican majority. The two [Republicans] that are there now were the two votes that were against net neutrality in 2015, and they’ve made it clear that they want to repeal it.”

They will probably get the rule reversed, Wheeler, Beyer, and Sallet all admitted — but that doesn’t mean they’ll truly succeed.

“We can all predict what can happen at the FCC, but I can tell you this,” Sallet said: “When I was general counsel, I didn’t think that what the FCC said was the last word. I knew there would be a day in court.”

And indeed there was: The businesses that threatened to sue the FCC if it passed a net neutrality rule did so the second they were legally able to.

As general counsel for the FCC, Sallet argued that case before the D.C. Circuit in late 2015. And the FCC did, indeed win that case, with the court ruling to uphold the FCC’s policy almost exactly a year ago.

Pro-neutrality and pro-consumer advocates are just as likely to sue the FCC over repealing the rule as the industry was to sue over the Commission enacting it in the first place. And preparing for that, Sallet said, is where public comment comes in.

More: Here’s the timeline for the likely death of net neutrality

Both Sallet and Wheeler admitted that the FCC’s mind is probably already made up, no matter what public comments come in to the proceeding now. But those comments become vital in the case of a lawsuit and “can shape what happens if it’s necessary to go to court one more time,” as Sallet put it.

So, one audience member asked, “Is there any legal basis that I can mention in my comments as to why net neutrality should be preserved?”

There are “two legal questions on how consumers see their broadband connections” that may (will) come into play in a court case, Sallet explained.

“And so an important question for anyone to answer is: when you use an internet connection, do you expect to receive content exactly as you requested it, or do you expect it to change along the way?” Sallet asked.

Because that’s part of the legal analysis, he continued: “What do consumers believe they’re buying when they buy an internet connection? Do they think they’re buying a pathway, or do they think they’re buying the content itself?”

The other thing that matters from a consumer point of view is your expectation of the rules, Sallet continued.

“You buy a service that says it will take you everywhere on the internet,” he said. “Do you think that expectation is that you can go to all legal websites and apps, or do you think there are some that the broadband provider will say are off limits?”

Those are the points that will come up in a court case, and so those are the really important points to make in your comments to the FCC, all speakers stressed in response to audience questions.

“The current political situation is not going to produce a law in Congress that is as strong as the regulations that now exist,” Wheeler said. “That’s step one. Nothing is over until the court says it’s over, and that’s why your comments are so crucial. Because building that record that will be cited is crucial.”

“The law is in place today. The law has been affirmed by the courts. And we’ve got to fight to make sure that it stays in place.”

If you do want to add a comment to the record, here’s how to tell the FCC just what you think of its plan to kill net neutrality.