Why the Net Neutrality Fight Isn’t Over

In the midst of a more than decade-long battle over net neutrality, the chairman of the Federal Communications Commission (FCC), Tom Wheeler, submitted a proposal on Wednesday that he called“the strongest open-Internet protections ever proposed by the FCC.”

Internet-freedom advocates were elated. The plan—to reclassify broadband under Title II of the Communications Act of 1934—reflects a bold shift toward treating the Internet like a utility and allowing the FCC to make sure Internet service providers (ISPs) are transmitting web traffic at the same speeds for all.

But the proposal is merely a strategy outline, and key details are missing. In fact, the comprehensive blueprint, an eight-page set of rules, will not be made public until after five FCC commissioners vote on it February 26. This leaves a little over two weeks for companies and the public to comment, mobilize and lobby for last-minute changes before the rules are put to a vote.

Theoretically, anything could be changed during this period; realistically, the proposal’s main points—like the Title II classification—will remain intact. But the many missing details could have dramatic effects when put in practice.

For instance, the proposal makes clear that broadband providers will not be able to cut deals with friends and sell fast-lane services for their content. However, the plan does not address whether “zero rating”—a service mobile providers have been dabbling with that allows consumers to access certain services without affecting their capped data allowance—will be banned.

Like fast lanes, zero rating is a type of discrimination, as it prioritizes content. Some of the biggest companies on the Web, Facebook and Google among them, are zero-rated in many developing countries. While this could benefit consumers who cannot afford or do not have access to data plans, some activist groups, such as the Electronic Frontier Foundation, call it a “dangerous compromise.”

“Although it may seem like a humane strategy to offer users from developing countries crumbs from the Internet’s table in the form of free access to walled-garden services, such service may thrive at the cost of stifling the development of low-cost, neutral Internet access in those countries for decades to come,” writes the EFF’s Jeremy Malcolm.

Not only are the rules still subject to change, but if they are passed, it will then be up to the FCC to determine how it will interpret and enforce them.

For instance, in a call with reporters on Wednesday, FCC officials indicated they may handle zero-rating services on a case-by-case basis and only ban programs that are determined to be hindering competition. If such a vague rule is implemented, in terms of zero rating or any other matter, the question becomes how a combination of interpretation and enforcement will play out in practice.

Also, it is possible that AT&T, Verizon and the CTIA—the wireless industry’s top lobbying organization—will sue the FCC if the Internet is reclassified. As AT&T’s federal-regulatory vice president Hank Hultquist highlighted in a blog post on Monday, Verizon’s lawsuit last year successfully killed the FCC’s original rules for an open Internet.

The proposed changes are already not sitting well with congressional Republicans, many of whom have begun strategizing the effort’s demise. For instance, an effort was launched earlier this year to write a law undercutting the FCC’s authority.

In an interview with Politico, former Republican FCC chairman Michael Powell, who now heads the National Cable & Telecommunications Association, said that if the FCC is sued, appeals could take years. If the FCC prevails but a Republican wins the 2016 presidential election, a GOP-led FCC could undo Wheeler’s work.

So stay tuned. This fight is far from over.