How Did An Idea That Seemed Like A Long Shot Win The Net Neutrality Debate?

Last year started badly for net neutrality proponents. In January, a federal appellate panel based in Washington DC rejected the open Internet rules issued by the Federal Communications Commission. Years after net neutrality's supporters tried to persuade the FCC to institute a net neutrality regime for the Internet, the case turned out to be the second consecutive defeat the agency suffered before the judicial body. Within weeks, the FCC announced that it would come up with a new set of regulations in response to the defeat.

Based on the two the court rulings striking down its past proposals, the agency had some options. Neither ruling questioned net neutrality's merits. Instead, both in 2010 and 2014, the DC court rejected the statutory authority the FCC relied upon to issue regulations barring Internet Service Providers from favoring some content providers over others.

That authority originated from the 1934 Communications Act, which Congress updated in 1996. With these two cases serving as a guide, nearly every net neutrality advocate urged the FCC to issue its new set of regulations under Title II of the Act, which allowed the FCC to regulate what the statute called "common carriers" much like public utilities.

The provision turned out to be an elixir for net neutrality's supporters. Unlike the other statutory provisions previously relied upon by the FCC, Title II granted the FCC far broader and more stringent regulatory oversight over the institutions falling within the provision. Plus, these advocates believed that unlike the lines of statutory authority rejected by the DC Circuit in 2010 and 2014, net neutrality rules promulgated under Title II could withstand judicial scrutiny.

To their disappointment, the FCC's first cut at its proposed rules - leaked in April by the Wall Street Journal - didn't embrace Title II. Instead, the FCC  returned to the portion of the Communications Act rejected by the courts.

This is where things went from bad to worse for net neutrality's champions. While the reluctance to proceed under Title II was disappointing, the leaked proposal exposed something far more shocking. For the first time since net neutrality entered into the public's consciousness, the FCC considered allowing ISPs the ability to offer preferential treatment to content providers on "commercially reasonable" terms. That preferential treatment - or "fast lanes" - struck at the heart of net neutrality, which at its core demanded that all of the Internet's content providers and end users have equal and unfettered access to each other. It also represented a major shift on net neutrality principles firmly established a decade ago that were supported by FCC chairmen from both political parties.

As the leaked proposal horrified net neutrality proponents, it also served as rallying cry, helping to coalesce a diverse set of advocates with different interests, missions, and organizational structures into a formidable coalition. Within weeks, this group combined non-profit groups like Free Press and Public Knowledge with a bevy of Internet heavyweights like Netflix and smaller, midsized web-based businesses like Etsy. Academic think-leaders like Columbia Law School's Tim Wu rounded out the group.

Soon, this core group of institutions and individuals swelled as organizations like the ACLU, which hadn't focused much on net neutrality, joined the effort.

This ad hoc coalition mobilized one of the most successful advocacy campaigns seen in recent years. Compared to the ISPs - companies like Comcast , Verizon, and AT&T - which blanketed Washington with campaign donations and armies of lobbyists, coalition members relied on their diversity and grass roots support. To sway the FCC, the group's members met with agency personnel, testified before Congress, and participated in a series of roundtable discussions moderated by the agency. Among the many letters sent to the FCC, two in particular by hundreds of prominent Internet firms and venture capitalists showcased the movement's broad appeal. The coalition also published op-eds and generated research touching upon every facet of the debate taking place in Washington, from First Amendment and pro-democracy perspectives to economic talking points.

The group's biggest strength came in its ability to summon grass roots support. Its members mobilized at least 20 distinct letter-writing campaigns. When it came time to submit comments on the FCC's proposed rules, the coalition helped orchestrate nearly 4 million submissions in favor of net neutrality. The volume was so heavy that it surpassed the deluge of comments received by the agency after the Janet Jackson Super Bowl wardrobe malfunction. The message conveyed by these comments was equally monumental: according to the Sunlight Foundation, less than 1 percent of those comments opposed net neutrality.

By August, the tide began to turn. FCC Chairman Tom Wheeler told a Congressional committee that the agency was “seriously considering moving forward to adopt rules using Title II.”

Weeks later, the Internet slow-down day in September marked the coalition's high point. Hundreds of thousands of people gathered in person and online to push for strong net neutrality rules under Title II. They swamped Congress with more than 2 million phone calls and emails and were joined by 10,000 web sites that ran the loading icon that appears on a slow web site.

The next major move came from President Barack Obama. In a strongly worded message delivered in November, he urged the FCC to "reclassify consumer broadband service under Title II of the Telecommunications Act." The weight of an announcement from the White House tilted the debate firmly into the coalition's direction.

Later in the Fall, Wheeler floated the possibility of a hybrid approach that would incorporate some elements from Title II. Recent news reports suggest that the agency will go much further than this halfhearted step as it unveils its final plans next month.

What seemed like a long shot a year ago now seems like a real possibility. “Putting Title II on the table… is due to our efforts," said Matt Wood of Free Press, one of the coalition's leading organizations. "I know we’ve moved the conversation quite a bit." If the FCC places Title II at the heart of the new net neutrality rules it's scheduled to issue next month, Wood's words may just be the biggest understatement Washington has heard in some time.