'Fast lanes' backlash sets FCC record

The Federal Communications Commission has received 1.47 million comments on its controversial plan for new net neutrality rules, breaking the record set by Janet Jackson’s infamous “wardrobe malfunction” at the 2004 Super Bowl.

The old record of 1.4 million comments was broken Wednesday amid an Internet-wide protest of the FCC’s regulatory plan, which critics warn could lead to a tiered system of “fast lanes” and “slow lanes” on the Internet.

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The backlash against FCC Chairman Tom Wheeler has been echoed by criticism from Capitol Hill, where a number of Democrats have urged the FCC to assert sweeping regulatory authority over the Internet.

Public interest in the FCC’s plan has been intense from the start. A surge of visitors seeking to comment on the proposal has twice overloaded the agency’s website and caused it to crash.

On Wednesday, websites from Netflix to Reddit to Kickstarter took part in a vocal campaign against Wheeler's proposal, which they said would lead to “fast lanes” for deep-pocketed companies that could pay Internet providers like Comcast and Time Warner Cable for upgraded service — and “slow lanes” for everyone else. Wheeler’s proposal would seem to allow those “paid prioritization” deals, as long as they are “commercially reasonable.”

As part of their “Internet Slowdown” protest, companies' websites hosted banners and “loading” images warning about the perils for a “two-tiered” Internet and encouraged users to contact Congress and the FCC.

The pressure appeared to be having an impact on Capitol Hill, where centrist Sen. Angus KingAngus KingThis Week in Cybersecurity: Dems press for information on Russian hacks Angus King: Trump's not draining swamp, he's adding alligators Overnight Cybersecurity: Last-ditch effort to stop expanded hacking powers fails MORE (I-Maine) called for the FCC to legally reclassify broadband Internet, so it could be regulated like traditional phone service — a controversial move that would give the FCC a stronger hand but almost surely lead to a flurry of lawsuits.

House Minority Leader Nancy Pelosi (D-Calif.) made the same plea as King on Monday.

“The American public is speaking nearly unanimously,” said Free Press President Craig Aaron, who helped to organize Wednesday’s protest.

An analysis of many of the public comments by the Sunlight Foundation found that two-thirds have urged the FCC to reclassify broadband Internet to impose utility-style regulations. Just 1 percent clearly opposed net neutrality.

Critics of a broad regulatory move to reclassify broadband service say it could lead to a slower Internet for everyone — exactly the outcome advocacy groups and tech companies say they are trying to avoid.

“Want a real Internet slowdown day?” asked the National Cable and Telecommunications Association in a blog post responding to Wednesday’s protest. “Regulate it like a public utility.”

Reps. Bob Latta (R-Ohio) and Rep. Lee Terry (R-Neb.) posted similar messages on Twitter.

Comcast Executive Vice President David Cohen argued that utility-style regulations “would harm the very thing we love about the Internet — the speed at which it can change, adapt, and innovate.”

“Any effort to reverse the light touch regulation the government has employed so far would only serve to stifle the incredible investment and innovation that we have enjoyed to date,” he wrote in a blog post.

Still, there is some indication the public backlash might be having some effect at the FCC.

After criticism over “interconnection” deals that a number of Internet providers made to speed up traffic at Netflix — which involve cutting out the middlemen in delivering Internet access and are different from the concept of net neutrality — Wheeler announced earlier this summer that the agency would investigate the deals.

Wheeler this week also indicated an openness to extend net neutrality rules to mobile devices, such as cellphones and tablets that access the Internet through wireless companies like Verizon or AT&T. Thousands of people have expressed concern about those companies' service, he said, which was not covered under the agency’s previous rules.

The chairman also recently criticized the state of the current broadband Internet market, which he said was too concentrated and did not force companies to compete over consumers.

“He’s certainly aware of the criticism that’s out there and aware that it keeps coming and growing louder,” said Aaron, with Free Press. “Will that move him to change his course? That’s the million-dollar question here. But should it? Absolutely.”


Aside from Wheeler, the public response might have emboldened the FCC’s two other Democratic commissioners, Jessica Rosenworcel and Mignon Clyburn.

Both Republican Commissioners Ajit Pai and Michael O’Rielly voted against the initial proposal when it was introduced in May and have seemed opposed to any new rules, after an appeals court tossed out the FCC's previous ones earlier this year.  

That could leave Rosenworcel and Clyburn with the upper hand and the public support to force Wheeler to go beyond his initial proposal.

Both will participate in a forum on net neutrality in Sacramento, Calif., with Rep. Doris Matsui (D-Calif.) later this month. Groups like Free Press and the American Civil Liberties Union have pushed the commission to make more trips outside the Beltway.

There are a range of other Internet issues before the FCC, including a request for it to strike down state laws limiting government-run Internet services and oversight of two major mergers — Comcast’s $45 billion deal to combine with Time Warner Cable and AT&T’s $48 billion plan to buy DirecTV.

If the agency chooses not to impose utility-style rules on Internet service providers, the FCC could channel public outrage through those other procedures, observers say.

“I think they’re probably going to be looking for ways to avoid [utility-style rules] while still making the public outrage — still being able to respond to that,” said Berin Szoka, president of TechFreedom, a think tank that is opposed to stiff FCC rules.

The FCC might use “other tools to make the rules sound more aggressive to present a package that plays better,” he said. “But I think really, at this point, it’s largely about optics, and that’s unfortunate.”