Congresswoman Nancy Pelosi, the powerful Democrat House leader who represents San Francisco, is urging the Federal Communications Commission to reclassify broadband service under a strict regulatory regime favored by many Open Internet advocates.
Pelosi's endorsement of so-called Title II reclassification, which is vehemently opposed by cable and telecom giants and their allies on Capitol Hill, represents a major political boost for supporters of net neutrality, the principle that broadband providers should treat all data equally.
FCC Chairman Tom Wheeler and his colleagues are weighing whether to reclassify broadband service under so-called common carrier regulations in the wake of a legal defeat earlier this year that gutted the agency's net neutrality rules. Wheeler has proposed a new policy that stops short of reclassification, and opens to the door to so-called paid prioritization, which many Open Internet advocates argue would effectively spell the end of net neutrality.
In a letter to Wheeler released Monday, Pelosi wrote that she is "concerned" that the FCC "may act in a way that would permit broadband providers to discriminate against the content consumers and innovators create and enjoy." She warned the agency that Wheeler's proposed rules might force innovators "into commercial arrangements that require payment of tolls in cash or equity to get their ideas on the internet."
there's now almost no political support for Chairman Wheeler's proposal within his own party.
"I oppose special internet fast lanes, only open to those firms large enough to pay big money or fraught enough to give up big stakes in their company," Pelosi wrote. She noted that the DC Circuit Court of Appeals, which ruled against the FCC's net neutrality rules in January, give the agency "a clear path forward to prohibit discrimination and paid prioritization."
"I believe the FCC should follow the court's guidance and reclassify broadband as a Telecommunications Service under Title II of the Communications Act," Pelosi said.
Open Internet advocates hailed Pelosi's clear support for reclassification as further evidence that Wheeler has the political support for what would surely be a bruising battle over reclassification on Capitol Hill. They say that reclassification would give the FCC greater authority to ensure that broadband providers don't block or discriminate against online services—two principles that are at the heart of net neutrality.
"This is a huge political statement," said Marvin Ammori, a First Amendment lawyer and tech policy expert who strongly supports net neutrality. "The FCC always suggested that its hands were tied—that real net neutrality, under Title II, was a pipe dream without political support."
"But the FCC completely misunderstood the politics," Ammori told Motherboard. "In fact, there's now almost no political support for Chairman Wheeler's proposal within his own party. His entire base of support now is the cable and phone companies, their vendors, and closest allies."
FCC spokesperson Kim Hart declined to comment on Pelosi's letter.
Although Wheeler has asserted that he won't "hesitate to use Title II," many observers believe that he wants to avoid the inevitable political firestorm that would result from reclassification.
Wheeler clearly knows that Title II reclassification would prompt a furious response from the cable and telecom giants. Comcast, Verizon and AT&T vehemently oppose Title II reclassification, which they say would allow "unprecedented government micromanagement of all aspects of the internet economy." They say that such a move would deter them from making capital investments needed to improve and expand their service.
Several conservative lawmakers, who are allied with the cable and telecom giants and who view the FCC with suspicion under any circumstances, have warned Wheeler not to pursue that path. Many oppose net neutrality rules altogether.
For example, Rep. Marsha Blackburn, the Tennessee Republican who serves as Vice Chair of the House Energy and Commerce Committee, which has jurisdiction over the FCC, has called net neutrality rules "socialistic," a view that is shared by many members of her caucus.
In May, Blackburn and several of her colleagues sent Wheeler a strongly worded letter in which they expressed "grave concern" about reclassification.
"Such unwarranted and overreaching government intrusion into the broadband marketplace will harm consumers, halt job creation, curtail investment, stifle innovation, and set America down a dangerous path of micromanaging the internet," the lawmakers wrote.
Over the last decade, AT&T and Verizon have been Blackburn's second and third largest donors, funneling $66,750 and $59,650 into her election campaigns, respectively, according to the Center for Responsive Politics. She's also received $56,000 from the National Cable and Telecommunications Association, an industry trade group, and $36,000 from Comcast, the nation's largest cable company.
Without strong net neutrality rules, disruptive startups like Skype, YouTube and Netflix might have been snuffed out by broadband providers in favor of their own, rival services, according to Open Internet advocates.
For her part, Pelosi pointed out that some of the more far-reaching consequences of Title II reclassification could be ameliorated through what's called forbearance, which gives the FCC certain flexibility in applying the statute. "The law's forbearance mechanism is an appropriate tool to refine modern rules and will prevent the FCC from overburdening broadband providers," Pelosi wrote.
Craig Aaron, president and CEO of the Free Press Action Fund, a DC-based advocacy group, said that Pelosi's letter "shows the serious momentum" for tough new net neutrality regulations.
"Chairman Wheeler can no longer claim that there's no political support for reclassifying broadband as a common carrier," Aaron told Motherboard. "Clearly the more politically perilous path is digging in and defending his unworkable proposal."
"As the Democratic leader rightfully points out, the courts have given the FCC a clear path forward to prevent slow lanes and discrimination: It's called Title II," he continued. "And as millions and millions of Americans have been telling the FCC, that's the only way to protect the internet and ensure it continues to thrive."