How a Ragtag Band of Activists Won the Battle for Net Neutrality

It was com­pletely hope­less.

That’s what Mar­vin Am­mori, a net-neut­ral­ity ad­voc­ate and con­sult­ant for tech com­pan­ies, told Ari Shah­dadi, the gen­er­al coun­sel of Tumblr, over bur­gers in New York City in Janu­ary 2014.

A fed­er­al court had just sided with Ve­r­i­zon and struck down the gov­ern­ment’s net-neut­ral­ity reg­u­la­tions, po­ten­tially giv­ing In­ter­net pro­viders the green light to block web­sites or carve up the In­ter­net in­to “fast lanes” and “slow lanes.”

Am­mori and Shah­dadi feared the fu­ture of the In­ter­net as an open and free plat­form could be in danger. But the only way to re­store net neut­ral­ity would be for the Fed­er­al Com­mu­nic­a­tions Com­mis­sion to do the polit­ic­ally un­think­able, what some called the “nuc­le­ar op­tion.”

They would have to con­vince the FCC to de­clare the In­ter­net a “tele­com­mu­nic­a­tions ser­vice” un­der Title II of the Com­mu­nic­a­tions Act. That move, they be­lieved, was the only way the FCC could en­act real net-neut­ral­ity pro­tec­tions that could hold up in court. But it would pro­voke the full wrath of some of the most power­ful com­pan­ies in Wash­ing­ton. Com­cast, Ve­r­i­zon, AT&T, and Time Warner Cable would all ar­gue it would strangle their in­dustry with out­dated util­ity-style gov­ern­ment con­trols.

How could a hand­ful of start-ups and some feisty In­ter­net act­iv­ists beat mult­i­bil­lion-dol­lar cor­por­a­tions with hun­dreds of well-con­nec­ted lob­by­ists?

Shah­dadi man­aged to talk Am­mori back from the ledge. A few years earli­er, Shah­dadi re­minded him, they had helped or­gan­ize a huge on­line up­roar over the Stop On­line Pir­acy Act, or SOPA. Thou­sands of web­sites shut down in protest over the anti-pir­acy meas­ure. Des­pite the vo­cal sup­port of Hol­ly­wood and the mu­sic in­dustry, law­makers were forced to drop the le­gis­la­tion in the face of the massive pub­lic back­lash.

It wouldn’t be easy, but if they could rep­lic­ate that kind of polit­ic­al mo­bil­iz­a­tion, they had a shot at suc­cess, Shah­dadi said. Am­mori agreed they would have to get to work.

A year later, what was once con­sidered im­possible by nearly every in­dustry ana­lyst and polit­ic­al ob­serv­er is now a vir­tu­al cer­tainty. FCC Chair­man Tom Wheel­er is push­ing ahead with strin­gent net-neut­ral­ity rules to bar pro­viders from block­ing web­sites, slow­ing down traffic, or strik­ing any pay-for-pri­or­ity deals. Crit­ic­ally, the rules would clas­si­fy In­ter­net ser­vice un­der Title II and would ap­ply to mo­bile devices.

“I am sub­mit­ting to my col­leagues the strongest open In­ter­net pro­tec­tions ever pro­posed by the FCC,” Wheel­er wrote in an op-ed for Wired. “My pro­pos­al as­sures the rights of In­ter­net users to go where they want, when they want, and the rights of in­nov­at­ors to in­tro­duce new products without ask­ing any­one’s per­mis­sion.”

The FCC is set to vote on the rules on Feb­ru­ary 26.

The net-neut­ral­ity ad­voc­ates were able to win through a fe­ro­cious cam­paign that ral­lied mil­lions of people to their side and through the ef­forts of a small group of aca­dem­ics and law­yers who ar­gued force­fully for strong rules. The crit­ic­al mo­ment came when Pres­id­ent Obama joined their fight in Novem­ber, ur­ging the FCC to en­act the “strongest pos­sible” rules.

But it wouldn’t have been pos­sible without an FCC chair­man who al­ways saw him­self as be­ing on the side of the small start-ups and who was open to chan­ging his mind on the best path for new rules. Na­tion­al Journ­al spoke with of­fi­cials with­in the FCC and at the in­dustry and ad­vocacy groups on both sides of the is­sue to chart the year­long battle that has led the FCC to the verge of claim­ing its most ex­pans­ive powers ever over the In­ter­net.

The In­ter­net pro­viders ad­mit they have been badly beaten. But they warn that con­sumers will ul­ti­mately pay the price with more ex­pens­ive ser­vice and slower speeds thanks to bur­den­some gov­ern­ment reg­u­la­tion. And it’s all un­ne­ces­sary, they claim, be­cause they nev­er had any in­ten­tions of harm­ing the open­ness of the In­ter­net.

THE ACT­IV­ISTS MO­BIL­IZE

The battle didn’t start well for the net-neut­ral­ity ad­voc­ates. In April, Wheel­er said he would draft a pro­pos­al that would avoid Title II. In­stead, un­der his plan, In­ter­net pro­viders would have to handle traffic in a “com­mer­cially reas­on­able” way.

The idea, ac­cord­ing to FCC of­fi­cials fa­mil­i­ar with Wheel­er’s think­ing, was that the pro­pos­al would ad­dress the con­cerns of net-neut­ral­ity ad­voc­ates without pro­vok­ing a back­lash from the In­ter­net pro­viders. He was also sens­it­ive, they said, to the claims by In­ter­net pro­viders that be­ing too ag­gress­ive would dis­cour­age in­vest­ment in broad­band net­works.

Wheel­er had even sug­ges­ted pub­licly that, with the prop­er over­sight, it might be be­ne­fi­cial to al­low a “two-sided mar­ket” where com­pan­ies like Net­flix could pay In­ter­net pro­viders to en­sure the best pos­sible trans­mis­sion of their videos.

“I be­lieve this pro­cess will put us on track to have tough, en­force­able open In­ter­net rules on the books in an ex­ped­i­tious man­ner, end­ing a dec­ade of un­cer­tainty and lit­ig­a­tion,” Wheel­er wrote in a blog post at the time.

But he had over­es­tim­ated the polit­ic­al muscle of the cable and tele­com com­pan­ies and un­der­es­tim­ated the power of the In­ter­net act­iv­ists. Soon, groups like De­mand Pro­gress, Fight for the Fu­ture, and Free Press were ral­ly­ing their sup­port­ers through so­cial-me­dia and email cam­paigns.

The fight got per­son­al. The groups of­ten high­lighted the fact that Wheel­er had led the lob­by­ing groups for both the cable in­dustry and the cel­lu­lar car­ri­ers. He was go­ing to let his in­dustry friends des­troy the In­ter­net, the groups warned. Phones began ringing off the hooks at the FCC and on Cap­it­ol Hill.

“This was open pub­lic war­fare with the FCC in a way they had nev­er been on the re­ceiv­ing end of be­fore,” ex­plained Dav­id Segal, the ex­ec­ut­ive dir­ect­or of De­mand Pro­gress. “It was shock­ing to them.”

Mean­while, ad­voc­ates at Pub­lic Know­ledge, Stan­ford Uni­versity Law Pro­fess­or Bar­bara van Schewick, and oth­ers got to work mak­ing the leg­al and eco­nom­ic case for strong rules.

Am­mori was work­ing be­hind the scenes to co­ordin­ate the ad­vocacy groups and tech com­pan­ies sup­port­ing net neut­ral­ity. He helped write a let­ter warn­ing that Wheel­er’s pro­pos­al rep­res­en­ted a “grave threat to the In­ter­net” and began col­lect­ing sig­na­tures from tech com­pan­ies. The let­ter star­ted with a few small start-ups and then cir­cu­lated wider and wider. Ul­ti­mately, about 150 com­pan­ies, in­clud­ing all of the Sil­ic­on Val­ley gi­ants—Google, Face­book, Amazon, and Net­flix—had en­dorsed it.

“Once that let­ter came out, every­one real­ized com­pan­ies care about this,” Am­mori said.

At an FCC meet­ing in May, dozens of pro­test­ers banged drums out­side of the agency’s headquar­ters. Se­cur­ity guards led out five pro­test­ers who stood up throughout the meet­ing and began shout­ing at the five com­mis­sion­ers.

The back­lash had con­vinced Wheel­er to in­clude lan­guage in his pro­pos­al to at least ask for feed­back on wheth­er the FCC should use its powers un­der Title II.

That was the first vic­tory for the net-neut­ral­ity ad­voc­ates, Segal said. Al­though Wheel­er still favored his own pro­pos­al, by ask­ing for com­ments on Title II, he was at least keep­ing the op­tion on the table.

“That spurred on the act­iv­ists and made them re­cog­nize their own power,” Segal said.

When the FCC opened up the pro­ceed­ing to pub­lic in­put, it was soon flooded with thou­sands of out­raged (and of­ten pro­fan­ity-laced) com­ments.

In June, John Oliv­er de­voted a por­tion of his HBO com­edy show to the im­port­ance of net neut­ral­ity and urged the In­ter­net’s “trolls” to des­cend on the FCC’s com­ment pro­cess.

“This might be the mo­ment you’ve spent your whole life train­ing for,” Oliv­er joked. “We need you to get out there, and for once in your lives, fo­cus your in­dis­crim­in­ate rage in a use­ful dir­ec­tion.”

Oliv­er said that al­low­ing a former in­dustry lob­by­ist like Wheel­er to de­cide the fate of the In­ter­net is “the equi­val­ent of need­ing a babysit­ter and hir­ing a dingo.”

The en­su­ing flood of com­ments re­peatedly crippled the FCC’s aging on­line com­ment sys­tem. Ul­ti­mately, 4 mil­lion people filed com­ments, the most for any FCC pro­ceed­ing ever.

WHEEL­ER BE­GINS TO SHIFT

Over the sum­mer, Wheel­er traveled to Sil­ic­on Val­ley and New York to dis­cuss his plan with tech start-ups and in­vestors.

He was taken aback by the united res­ist­ance from the groups, ac­cord­ing to FCC of­fi­cials. Small com­pan­ies like Etsy, Kick­starter, and Meetup told him that their com­pan­ies could only suc­ceed with an open In­ter­net, and the only way to achieve that would be by in­vok­ing Title II.

Aside from the one let­ter, the big Web com­pan­ies like Face­book and Google mostly stayed on the side­lines of the de­bate. But the ar­gu­ments from the smal­ler com­pan­ies caused Wheel­er to re­think his po­s­i­tion, agency of­fi­cials said.

Wheel­er views him­self as be­ing on the side of the up­starts, ac­cord­ing to the of­fi­cials. His ex­per­i­ence as the head of the cable lobby came 30 years ago when cable pro­viders were new com­pet­it­ors to the ma­jor broad­cast net­works.

Wheel­er seemed es­pe­cially ir­rit­ated by John Oliv­er’s jabs at his lob­by­ing past. “I am not a dingo,” he in­sisted at a press con­fer­ence when he was asked about the HBO sketch.

Wheel­er had also been an in­vestor and ex­ec­ut­ive at start-ups try­ing to shake up the mar­ket. He was the pres­id­ent of NABU, a com­pany that de­livered high-speed data over cable TV lines, but the com­pany failed be­cause cable pro­viders re­fused ac­cess to their net­works, Wheel­er has said.

So when com­pan­ies like Etsy and Kick­starter told him that his plan would let cable gi­ants kill their busi­nesses, he listened.

Wheel­er has since said pub­licly that he came to real­ize that people were in­ter­pret­ing his “com­mer­cially reas­on­able” stand­ard to mean whatever is “reas­on­able” for the In­ter­net pro­vider. That’s not how he had in­ten­ded it, but he went back to the draw­ing board to find a new solu­tion.

While many net-neut­ral­ity ad­voc­ates were laser-fo­cused on con­vin­cing Wheel­er to ad­opt Title II, oth­ers be­lieved they would need to give the FCC some kind of middle ground to con­sider.

Moz­illa, the non­profit or­gan­iz­a­tion that makes the Fire­fox browser, sug­ges­ted a “hy­brid” plan that would have the FCC ap­ply Title II au­thor­ity only to the re­la­tion­ship between web­sites and In­ter­net pro­viders, but not for the re­la­tion­ship between In­ter­net pro­viders and cus­tom­ers.

Chris Ri­ley, Moz­illa’s head of pub­lic policy, said that he al­ways pre­ferred full Title II re­clas­si­fic­a­tion, but he be­lieved he had to build a bridge for the FCC to get to that out­come. “Polit­ic­ally, whenev­er there is a bin­ary choice on the table, it’s ex­tremely po­lar­iz­ing,” he said.

The Cen­ter for Demo­cracy and Tech­no­logy, a Wash­ing­ton-based non­profit, and Tim Wu, the Columbia Uni­versity law pro­fess­or who coined the term “net neut­ral­ity,” also sub­mit­ted sim­il­ar hy­brid plans to the agency. So when Wheel­er and his team began mov­ing away from their ini­tial pro­pos­al, they had an ar­ray of oth­er op­tions to con­sider.

“We col­lect­ively as a com­munity brought the com­mis­sion along, rais­ing the baseline little by little,” Ri­ley said.

By Septem­ber, the FCC was try­ing to find a cre­at­ive way to use Title II, a ma­jor shift from the ori­gin­al plan.

OBAMA STEPS IN

While the main fo­cus for net-neut­ral­ity ad­voc­ates was al­ways the FCC, they were also run­ning par­al­lel cam­paigns to en­list law­makers and the White House to their side.

Pres­id­ent Obama had been a net-neut­ral­ity sup­port­er since he first made it a plank of his cam­paign plat­form in 2008. But ad­voc­ates be­lieved that, to really ex­ert pres­sure on the FCC, they would have to get him to en­dorse Title II.

Am­mori helped to or­gan­ize meet­ings between small tech com­pan­ies and net neut­ral­ity ad­voc­ates with key White House aides such as R. Dav­id Edel­man.

Megan Smith, the White House’s chief tech­no­logy of­ficer and a former Google ex­ec­ut­ive, told The New York Times that she made sure the pres­id­ent heard dir­ectly from Vint Cerf and Tim Bern­ers-Lee, who were in­stru­ment­al in cre­at­ing the In­ter­net and World Wide Web.

After Novem­ber’s midterm elec­tion, Obama de­cided it was time to in­ter­vene. It was around the same time that Obama was tak­ing on Re­pub­lic­ans on oth­er lib­er­al causes, such as his ex­ec­ut­ive ac­tions on im­mig­ra­tion. On Novem­ber 6, the White House dis­patched Jeff Zi­ents, the dir­ect­or of the Na­tion­al Eco­nom­ic Coun­cil, to tell Wheel­er that the pres­id­ent would be out­lining his own net-neut­ral­ity plan.

Four days later, in a You­Tube video pos­ted while the pres­id­ent was trav­el­ing in China, Obama said the FCC should en­act rules to bar In­ter­net ser­vice pro­viders from block­ing web­sites, throt­tling traffic, or cre­at­ing any “fast lanes” for com­pan­ies that pay more.

He urged the com­mis­sion to in­voke its au­thor­ity un­der Title II, while also waiv­ing some pro­vi­sions, such as those al­low­ing for price con­trols. “This is a ba­sic ac­know­ledg­ment of the ser­vices ISPs provide to Amer­ic­an homes and busi­nesses, and the straight­for­ward ob­lig­a­tions ne­ces­sary to en­sure the net­work works for every­one—not just one or two com­pan­ies,” Obama said.

Re­pub­lic­ans com­plain that Obama’s state­ment es­sen­tially turned the FCC, a sup­posedly in­de­pend­ent agency, in­to an arm of the ex­ec­ut­ive branch. When Wheel­er an­nounced he would en­act the pres­id­ent’s plan this week, Sen­ate Com­merce Com­mit­tee Chair­man John Thune, a South Dakota Re­pub­lic­an, ex­pressed dis­may that the FCC chief had “fi­nally suc­cumbed to the bully tac­tics of polit­ic­al act­iv­ists and the pres­id­ent him­self.”

FCC of­fi­cials in­sist that Wheel­er was already mov­ing to­ward Title II when the pres­id­ent made his state­ment. But there’s no deny­ing that Obama’s in­ter­ven­tion put tre­mend­ous polit­ic­al pres­sure on the chair­man to ad­opt a full Title II plan.

A key factor in Wheel­er’s de­cision, agency of­fi­cials said, was that the mar­kets didn’t plunge when the pres­id­ent out­lined his plan. In­dustry ana­lysts told in­vestors that, as long as the FCC waived pro­vi­sions such as price con­trols, Title II shouldn’t be a severe blow to the long-term pro­spects of broad­band pro­viders.

Fran­cis Shammo, the chief fin­an­cial of­ficer of Ve­r­i­zon, un­der­cut his own com­pany’s ad­vocacy when he told in­vestors on a quarterly earn­ings call in Decem­ber that the po­ten­tial for Title II “does not in­flu­ence the way we in­vest.” On a later call, he cla­ri­fied that he be­lieves Title II “will ab­so­lutely af­fect us and the in­dustry on long-term in­vest­ment in our net­works,” but the dam­age had been done.

Wheel­er was fur­ther re­as­sured, of­fi­cials said, by the as­tro­nom­ic­al bid­ding in an auc­tion of air­wave li­censes. Des­pite the fact that Wheel­er had clearly signaled he planned to ap­ply the rules to mo­bile devices, AT&T, Ve­r­i­zon, Dish Net­work, and T-Mo­bile were will­ing to spend a total of $45 bil­lion for li­censes to up­grade the ca­pa­city of their net­works.

In Janu­ary, when Wheel­er spoke at the In­ter­na­tion­al Con­sumer Elec­tron­ics Show in Las Ve­gas, he in­dic­ated he would en­act Obama’s plan.

THE AF­TER­MATH

“It was the biggest long shot I have ever been in­volved in,” Am­mori said.

He and oth­er In­ter­net ad­voc­ates had de­feated the en­ter­tain­ment in­dustry in the fight over the copy­right bill SOPA, but Hol­ly­wood is a “bunch of wimps” com­pared with the tele­com and cable gi­ants, he said.

In the SOPA fight, the act­iv­ists only had to scare law­makers away from passing le­gis­la­tion. It’s much harder to con­vince a reg­u­lat­ory agency to act­ively ad­vance a new policy. But they’ve done just that.

Ber­in Szoka, a net-neut­ral­ity skep­tic and the ex­ec­ut­ive dir­ect­or of liber­tari­an group Tech­Free­dom, ac­know­ledged that net neut­ral­ity is “clearly a polit­ic­ally win­ning is­sue for Demo­crats and the net­roots di­git­al act­iv­ist base.”

Szoka said he thinks there is a “very good chance” that the courts will side with broad­band pro­viders, who are already ready­ing their law­suits, and block some or all of the new rules. “If that hap­pens, all of the people who are gloat­ing now, their vic­tory will turn to ashes,” he warned.

But a de­feat in court for the FCC will only re­ignite net neut­ral­ity as an ex­plos­ive polit­ic­al is­sue. Szoka said he hopes Re­pub­lic­ans will learn to of­fer pro­pos­als to ad­dress le­git­im­ate con­cerns without “fall­ing in­to the trap of say­ing stu­pid things about net neut­ral­ity.”

It’s now clear that poli­cy­makers have to re­cog­nize a new kind of act­iv­ism around In­ter­net policy is­sues. On wonky, ob­scure top­ics that used to get little at­ten­tion out­side of small sub­sets of Wash­ing­ton, there are now mil­lions of people ready to mo­bil­ize and fight.

Segal ex­plained that it’s much easi­er to use the In­ter­net to or­gan­ize a grass­roots cam­paign when the cause in­volves the In­ter­net. Every­one on­line already has a stake in the fight, and the web­sites them­selves can use their plat­forms to rally their users.

“For the mil­len­ni­al gen­er­a­tion, tak­ing away an open In­ter­net is like, for an older gen­er­a­tion, tak­ing away So­cial Se­cur­ity or Medi­care—or for some people in the red states, tak­ing away their guns,” Am­mori said. “If you try to do this, they will call Con­gress every day. They will think you are a cor­rupt stooge.”