What’s next for net neutrality? 5 things we learned from the debate ahead of the FCC’s decision

How should the FCC change the internet?

That question, which the agency put to the public in May, triggered a torrent of reaction from consumers, big business and a bewildering collection of liberal and conservative lobby groups. In all, 3.7 million comments poured in — most of them warning the FCC not to deep-six net neutrality, a long-time policy that prevents internet service providers from giving special treatment to some websites at the expense of others.

Now, it’s decision time. The FCC’s comment period has come to a close and last week the agency concluded a round of hearings on Capitol Hill. All that’s left is for the 5-member Commission to schedule a final vote, one that will likely take place in the weeks after Election Day. So what’s the outcome going to be? Will the FCC bless a controversial proposal for “fast lanes” or will it uphold strict net neutrality?

It’s too soon to say for sure. But here are 5 important things we learned during the first phase of the process, and that will shape the endgame:

The American public does not want fast lanes – but may end up with them anyways

Two organizations, the Sunlight Foundation and NPR, performed sentiment analysis on the millions of comments submitted to the FCC, and came to the same conclusion: popular opinion is decidedly in favor of the FCC preserving net neutrality rules.

The majority of the “comments,” however, were simply form letters and names on a petition and came in response to two left-leaning populist appeals — by comedian John Oliver and by websites that participated in an “internet slowdown day.” Meanwhile, a Republican group appeared to gain traction late in the comment process, claiming that more than 800,000 people opposed any move “to regulate the internet.”

The upshot is that the record-breaking number of comments to the FCC (the 3.7 million far outstripped even the Janet Jackson incident) revealed an unexpected level of engagement, but perhaps more noise than signal. And in any case, the FCC is not obliged to heed public opinion in the first place.

Wheeler is the wild card

Four of the five FCC Commissioners have already signaled that they will vote on partisan lines: two Democrats have come out in favor of net neutrality, and two Republicans against it. That leaves Chairman Tom Wheeler to break the tie and he has been cagey about what he will do.

While Wheeler initially rolled out a “fast lanes” plan that would spell the end of net neutrality, he has since walked away from that and has even invoked the prospect of “Title II” — which would guarantee net neutrality — as recently as last week. But even as he refuses to tip his hand on net neutrality, Wheeler has been taking strong stands on other issues in what may be an attempt to burnish his popularity. These positions include: support for cities that want to build fast broadband; a plan to redefine minimum internet speeds; and an end to sports blackouts.

All of these positions may increase Wheeler’s political capital: the question is whether he will spend it on imposing net neutrality rules — or on placating the millions who will be outraged if he votes for a lesser measure.

The tech giants are sitting it out

In a previous throw-down over the issue in 2010, Google led the charge on behalf of the tech industry to uphold net neutrality. It got the worst of the fight, ultimately reaching a milquetoast agreement with Verizon that resulted in a pledge for net neutrality on some networks, but not for wireless ones. This time around, Google is not taking up the fight.

While the Internet Association, a trade group representing almost every big tech company including Google, told the FCC in broad terms to support an open internet, its proposal fell short of calling for the “common carrier” language that would guarantee net neutrality.

As some have observed, it is Netflix instead of Google that is now the standard-bearer for net neutrality. The streaming giant also has a clutch of public interest groups and popular consumer sites like Etsy and Reddit on its side, but the absence of the likes of Google and Facebook means that the 2014 coalition is badly outgunned when it comes to money and lobbying influence.

Bet on new wireless rules

There’s a good chance the FCC won’t implement net neutrality rules, but it’s very likely the agency will impose new rules to end its different treatment of wireless versus land-based internet. As it stands, wireless internet — the sort delivered by your phone carrier — is exempt from traffic rules, but that will likely change.

Chairman Wheeler, for instance, has made pointed comments that the hands-off days are over the for the wireless industry. Meanwhile, industry giant Google has reversed itself from 2010 and declared that wireless should be held to the same standard as the wired internet.

This a battle that the FCC can win without too much fuss: it has powerful allies on its side, and the idea of treating wired and wireless alike invokes the spirit of net neutrality — but keep in mind that, if net neutrality fails, new wireless rules will simply guarantee that the discrimination consumers experience will be similar across all connections.

Title II is all that matters

The long public comment period has permitted the FCC and lobby groups to try out all sorts of catchwords to frame the debate — from “fast lanes” to “open internet” to a ban on “commercially unreasonable” practices — but, in the end, only one phrase matters: Title II.

When a federal appeals court struck down the original net neutrality rules in a thunderbolt decision, it did so because the FCC hadn’t classified the broadband providers as Title II common carriers. The court even added that the FCC can impose net neutrality, but only if it uses Title II.

That’s why any other argument over how to impose net neutrality is irrelevant. If Chairman Wheeler is foolish enough to promise net neutrality without Title II, the FCC will simply get sued all over again, and the court will say exactly what it did last time.

The bottom line is that the FCC may impose new wireless rules or demand ISP’s increase broadband speeds but, for the purposes of net neutrality, none of that matters without Title II.