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

Despite fierce opposition from the major Internet providers, the FCC is poised to seize expansive new regulatory powers.

Protesters rally to support net neutrality outside of the Federal Communications Commission on May 15, 2014.
National Journal
Feb. 5, 2015, 9 a.m.

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 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.


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.


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.


“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.”

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