We start off the new year with the good news that the Federal Communications will likely vote on net neutrality at its late February meeting.  So we might—just might—be on the cusp of a decision to reverse the disastrous misclassification of broadband that the FCC made in 2002 for cable modem and a couple of years later for the rest of telecommunications. 

But good news isn’t done news.  I hope no one is sitting back and assuming that just because that 13 year old decision was so dumb, the Commission will surely do the right thing now.  Take it from someone who’s been there—that’s not how the place works.  While most of us were resting and otherwise enjoying the festivities of the holiday season, the huge Internet Service Providers (Comcast, Verizon, AT&T) weren’t.  They were busier than Christmas elves trying to force stale old arguments into new gift packaging. You see, they want the battle over Internet Freedom to be about anything but an open Internet.  So they do everything they can to confound the media and confuse the public, hoping to make this debate something it isn’t.  It’s not about internet taxes or intrusive government or legalisms the courts have already thrown out.  “When in danger, when in doubt, run in circles, scream and shout,” to quote my old boss, Senator Fritz Hollings. 

The core question here—the one that really matters—is this: will there be some place to turn when a few too-powerful gatekeepers interfere with the openness of the most dynamic communications tool in all of history?   Will our online experiences be ours to control, or the ISPs to impose?  Will we get the news sites we want, or the infotainment and corporate-speak they want us to have? Will we go where we want to go on the Net, or to where they want us to go?  Will our blogs and websites run like those of the big guys, or at turtle speed because we can’t afford to pay them?  Will a technology so filled with the promise of lowered barriers and new opportunities instead go down the same pot-holed paths traveled by cable, radio, and TV?

More than 80 years ago, our country decided that communications were too important to be left to huge special interests.  The people decided, and the law provided, that communications were a public good, integral to our freedoms as consumers and citizens.  They should be available to all, and should advance the public interest through ubiquity of service, consumer protections, privacy safeguards, equity for disability communities, and public safety.  Evolving advanced communications would, the law provided, come under this statutory framework.  It wasn’t complicated—it was, actually, pretty basic stuff.  So most of us thought.

But that wasn’t what the big guys wanted.  They wanted out from under any public oversight.  Their ideal world was government-approved market monopolies with no regulation.  And they found just the Commission to do that for them, hence those bizarre FCC decisions to take broadband (therefore the Internet) out of Title II of the Telecommunications Act and put it somewhere else where all those consumer and public interest protections didn’t exist.  It was milk and honey for the big ISPs.

So the challenge now is to put the broadband Internet back where it should have been all along.  This is the decision facing the FCC.  Without this basic step of putting advanced telecommunications back under Title II, there will be no sustainable rules, no certainty for citizens, and indeed no certainty for the telecommunications companies themselves. 

It is not necessary at this juncture, nor would it even be possible, to craft every specific rule that would apply to broadband for years and years to come.  Now is not the time to jot every “i” and cross every “t”.  Now is the time to call things what they are and put them back where they belong. 

The Commission should make clear, of course, its understanding that some rules and provisions that applied to plain old telephone service won’t fit broadband.  Technologies and services evolve, so the obligation of the agency is to keep up with those changes and make sure they don’t disadvantage citizens or slow innovation.  But there will be no way to keep up with them if there has to be a protracted battle royale over basic agency authority every time some little policy tweak is needed. 

There is a lot of discussion now about what parts of Title II from which to forbear, and I understand the need for general guidance from the Commission on this in its upcoming decision.  But there is hidden danger here, too.  I worry that, in an effort to calm the roiling political waters, the Commission might forbear from too much.  The authority of the Commission to act on consumer protection, privacy, public safety, universal service, disability, and reasonableness standards must not be compromised or frittered away in some misguided effort to tone down opposition to reclassification. The ISPs are all over the place trying to eliminate as much oversight authority as possible.  My advice to my former colleagues at the Commission: be very careful what you give up now because in the consolidated, competition-free world of broadband, the FCC may rue the day it surrendered its authority to protect the public interest.

The February vote on net neutrality is, without doubt, the most important decision the FCC has been called on to make in decades, I think ever.  It will determine the future of the country’s communications infrastructure, for good or for ill. The Internet, innovation, competition, the news and information we get, and the very viability of our civic dialogue are up for grabs.  I know some ISPs that really want to make that grab. 

And I know five Commissioners who are all that stand in the way of the biggest communications land–grab in history.  The legacy and the reputation of the current FCC depend upon what it decides next month.  So, too, do our rights as citizens of a democracy that has a lot of work to do and that doesn’t need a hijacked Internet getting in our way.