We Must Take a More Active Role in Challenging the FCC

On September 9, 2013 I entered the E. Barrett Prettyman Court house, which houses the federal Court of Appeals for the District of Colombia Circuit. It was 8:30am and in one and a half hours, oral arguments in Verizon v. FCC were slated to begin.

I assumed that arriving an hour before the doors would open would be time enough to get a seat for the case. However, I encountered a line of over a hundred people already waiting to enter the courtroom, and by the time I entered the court room, space was limited to standing room only.

As oral arguments proceeded, the panel asked a litany of questions about the question whether the FCC’s Open Internet Order treats broadband providers as common carriers. The arguments seemed rather esoteric, focusing on specific sections within the Order and the Telecommunications Act of 1996.

This was natural for a courtroom, and yet, it was rather strange to not hear questions about the FCC’s attempt at assigning itself ancillary authority over the Internet. What has seemed absent from much of the discussion about net neutrality is a serious opposition from the public to regulators self-implementing authority to manage the Internet.

In 2010, the FCC explored redefining broadband Internet from information technology to telecommunications technology in order to establish control over the industry. Content distributors, of course, supported the motion, but a majority of respondents were against the expansion. The FCC ceased exploration soon after.

The net neutrality debate is emblematic of the necessity of public participation in the discourse of Internet policy and rights. Back in 2012, when SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act) were proposed to regulate Internet access, there was a vast public outcry. SOPA and PIPA were two bills, from the House and Senate respectively, intended to enhance the powers of intellectual property holders to respond to piracy online.

On January 18, 2012, a series of protests, in the form of online petitions and calls to Congress, resulted in surprising change of votes on the laws. According to TechCrunch, while SOPA/PIPA had 80 supporters and 31 opponents on January 18, by January 19 there were 65 supporters and 101 opponents. Both bills ultimately died due to the vast public outcry and resulting lack of support in both chambers of Congress.

This year, by comparison, CISPA (Cyber Intelligence Sharing and Protection Act), a law designed to expand information sharing between intelligence agencies and cybersecurity firms, received comparatively muted public outcries. The bill, much like its 2012 version, passed the House but went nowhere in the Senate.

It is evident that Congress and other branches of government will continue to seek new ways to control the Internet, but citizens will have to remain vocal and vigilant in opposing these restrictive new laws if the Internet is to remain open and free for years to come.

The sentiment of this problem was best summarized by the words of former FCC Commissioner Robert McDowell at a debriefing following the oral arguments. “Part of my concern with the Order to begin with was…you had a courtroom that was packed, and it was packed full of mainly what? Lawyers trying to determine the fate of the Internet, and I don’t think that’s hyperbole.” He goes on to comment about the line of question, which stretched over to nearly two hours, with an initial expectation of only one hour, “I wish I had kept a tally of how many times that judges said ‘I’m confused’ or ‘I don’t understand that’…”

If judges, who have specialized in court cases centered on Internet regulations, are confused about said regulations, then we shouldn’t trust the FCC to regulate the Internet. We must be more vocal and vigilant in combating these regulatory encroachments.