Online ‘Day of Action’ for Net Neutrality Will Feature Free Speech Arguments

Net neutrality supporters preparing for Wednesday’s online protests to defend the set of rules enacted two years ago by the Federal Communications Commission are using the freedom of speech to bolster their case.

The Obama-era rules, codified in the 2015 Open Internet Order, aim to prevent internet service providers from blocking, slowing or otherwise unreasonably discriminating against content that end-users could access. On July 12, in response to FCC Chairman Ajit Pai’s plan to undo the rules, a slew of prominent websites and companies intend to show their support for net neutrality.

Similar protests against a crackdown on copyright violation in 2012 were able to help move the Stop Online Piracy Act and Protect IP Act bills off the table through coordinated site “blackouts.”

For the net neutrality fight, participants will use memes, push notifications, banner ads and other means to drive comments to the FCC’s website before a July 17 public comment deadline. The dating site OkCupid plans to send in-app messages on net neutrality to its users, for example. Supporters can change their profile images on social media sites to a loading “spinning wheel of death” in reference to ISPs’ capacity to throttle internet speeds.

“The internet is a place where the best ideas, products, and services can compete on an even playing field,” Michael Beckerman, president & CEO of the Internet Association, which includes “edge providers” such as Uber Technologies Inc., Google Inc. and Facebook Inc., said in an email Monday. “Without strong, enforceable net neutrality rules in place, innovation online will be stifled, consumers will have fewer and worse choices across the web, and the next generation of ground-breaking websites and apps will never come to be.”

Other net neutrality advocates fear diverse viewpoints will suffer without the rules. As ISP titan AT&T Inc. looks to merge with Time Warner Inc., which owns news outlet CNN, activists see the danger in ISPs incentivized to favor their own content.

“Wednesday’s day of action is only the beginning of a massive pushback against the effort to remove essential net neutrality protections,” said Chris Lewis, vice president at digital consumer rights group Public Knowledge by email Monday. “This is especially important when broadband providers are getting into a variety of other markets where they can prefer their services over competitors, from online payments and financing to security systems and competitive video offerings.”

But in comments filed in response to the FCC’s open internet rulemaking in 2014, it was Verizon Communications Inc. that claimed First Amendment rights against utility-like regulation through classification under Title II of the Communications Act of 1934 as a “common carrier.” That classification gives the FCC some authority to impose net neutrality rules.

“Compelled common carriage also would violate the First Amendment rights of broadband Internet access providers, who use their platform to ‘engage in and transmit speech,’” lawyers for Verizon wrote.

More recently, AT&T pointed to an element of Title II that it says would allow ISPs to have fast lanes or otherwise prioritize content of their choosing: clear disclosure of their “editorial discretion.”

In a May blog post, Hank Hultquist, AT&T’s vice president of federal regulatory issues, said it doesn’t matter so much that ISPs want to discriminate in this way — but it shows the weakness of Title II in enforcing net neutrality as the 2015 order meant it to.

The net neutrality rules in place under Title II allow for some “reasonable discrimination,” but protest organizers balked at Hultquist’s assessment.

“If they discriminated, kind of like AT&T is doing now with DirecTV — favoring their own service under a data cap — that’s not reasonable, that’s anti-competitive,” said Gigi Sohn in a phone interview Tuesday. Sohn was counselor to former FCC Chairman Tom Wheeler and is now a fellow at the Georgetown Law Institute for Technology Law & Policy.

“It’s up to the FCC to decide what’s reasonable and what’s not,” Sohn said. “But they want to self-regulate, to be free from any and all FCC oversight.”

Morning Consult