In a significant victory for supporters of Net Neutrality, the Federal Communications Commission (FCC) today reclassified broadband Internet as a public utility, and established a new Open Internet Order that applies to both fixed and mobile broadband. The new Open Internet Order includes three “bright line” rules, specifically banning broadband providers from blocking access to legal content, applications, and services; impairing access to content, applications, and services; and prioritizing Internet traffic in exchange for “consideration of any kind.” This would prohibit Internet Service Providers from establishing “fast lane” schemes in which corporate customers are charged fees to have data pass quickly through a network, while websites and services that could not afford these fees would find their traffic deliberately throttled or slowed by comparison. President Barack Obama, who declared support for this course of action in November 2014, praised the move in a statement, noting that the FCC had received more than four million letters and emails from U.S. citizens and companies during the agency’s open comment period last year, “overwhelmingly in support of a free and fair Internet.” The American Library Association (ALA), a longtime advocate for net neutrality protections, applauded the move as well, with ALA President Courtney Young stating that, “America’s libraries collect, create, and disseminate essential information to the public over the Internet, and ensure our users are able to access the Internet and create and distribute their own digital content and applications. Network neutrality is essential to meeting our mission in serving America’s communities. Today’s FCC vote in favor of strong, enforceable net neutrality rules is a win for students, creators, researchers, and learners of all ages.” Association of Research Libraries (ARL) President Deborah Jakubs agreed, stating that “libraries, colleges, and universities have long championed, advanced, and provided critical intellectual freedoms such as education, research, learning, free speech, and innovation. These freedoms rely on net neutrality, and today’s vote at the FCC ensures that network operators cannot act as gatekeepers and place commercial interests above non-commercial expression.” Larra Clark, deputy director for the ALA Office for Information Technology Policy (OITP) noted that grassroots advocacy, as well as organized efforts by ALA and other organizations, played an important role in the FCC’s decision. “ALA worked closely with nearly a dozen library and higher education organizations to develop and advocate for network neutrality principles, and we are pleased the FCC’s new rules appear to align nearly perfectly,” she wrote. In a statement issued after the vote, FCC Chairman Tom Wheeler confirmed that advocacy efforts and public comments had played an important role in shaping the agency’s perspective on the issue during the past year. “Last May, the [FCC] proposed a set of open Internet protections and, at the same time, asked an extensive series of questions about that proposal and about alternative approaches for protecting the open Internet,” Wheeler wrote. “We asked about the benefits and drawbacks of different approaches, different rule formulations, and different legal theories. We asked the public to weigh in, and they responded like never before. We heard from startups and world-leading tech companies. We heard from ISPs, large and small. We heard from public-interest groups and public-policy think tanks. We heard from Members of Congress, and, yes, the President. Most important, we heard from nearly 4 million Americans who overwhelmingly spoke up in favor of preserving a free and open Internet. We listened. We learned. And we adjusted our approach based on the public record.”

Opposition remains

Although net neutrality advocates today can declare a decisive victory, their fight is far from over. The FCC’s authority to enforce these new rules hinges on the agency’s reclassification of broadband Internet as a public utility—akin to a telephone landline network or electrical grid, and thus subject to comparable government regulations and oversight. Prior to today’s action, the FCC had classified and regulated broadband as an information service. With Verizon v. Federal Communications Commission, the U.S. Court of Appeals for the D.C. Circuit determined in January 2014 that this classification gave the FCC less authority to regulate broadband services provided by Verizon and other companies. The court, however, also noted that these broadband providers could threaten competition and innovation without regulations, and suggested reclassification of broadband services as one possible way for the FCC to enforce such regulations. In his statement today, Wheeler emphasized that the FCC does not plan to impose "utility style" regulation on U.S. broadband providers, but opponents of net neutrality have rallied negative attention to this possibility, arguing that imposing any new regulations on broadband providers will stifle innovation. Earlier this week, in a Wall Street Journal column titled “From Internet to Obamanet,” L. Gordon Crovitz argued that the classification could theoretically enable the FCC to review the fairness of Google’s search results, or arbitrarily force companies like Apple and Netflix to develop apps for unpopular devices, for example. Describing the FCC’s action as “a bad solution to a problem that doesn’t exist,” Bill Kovacs, U.S. Chamber of Commerce Senior VP for the Environment, Technology, and Regulatory Affairs said that the move would “plunge the industry into years of litigation and cause extreme regulatory and market uncertainty.” Arguing that the FCC was imposing “1930s Rules on the Internet,” Verizon cheekily issued a press release in Morse code. Michael E. Glover, Verizon senior vice president, public policy and government affairs, translated it as calling the FCC's decision "badly antiquated regulations [and] a radical step that presages a time of uncertainty for consumers, innovators, and investors. Over the past two decades a bipartisan, light-touch policy approach unleashed unprecedented investment and enabled the broadband Internet age consumers now enjoy." Wheeler has said that he expects the FCC to face additional lawsuits over the issue.