The FCC has done what even a few months ago seemed to most totally unthinkable: they delivered real net neutrality policy, putting in place strong regulations to protect fairness in internet access. After a decade-long policy battle, net neutrality advocates got nearly everything we’ve been calling for: clear-cut Open Internet rules that prohibit broadband network operators from blocking, throttling, or prioritizing internet content and services, that apply to both wired and wireless networks, and— the most wonky, yet most important, point— are based in Title II of the Communications Act. In other words, the FCC can now stop broadband providers from restricting your internet traffic or charging extra for exclusive internet “fast lanes,” whether your connection is to a personal computer or a mobile device, all rooted in a long-standing regulatory tradition of “common carriage” that protects openness and equality for essential two-way communications infrastructure. (For more details, you can check out my previous coverage of net neutrality here on Antenna, where I’ve written about the importance of Title II and the politics of policy that led to this point. For more on what net neutrality even is, you can check out my explainer for the Media Industries Project.)

Overall, the FCC’s new Open Internet rules represent a major come-from-behind victory for net neutrality advocates and a significant achievement for more democratic communications in the US. So, what should we make of this landmark FCC decision? How in the world did this actually get done? And what exactly happens now? Let me mention a couple of quick points along these lines.

The first and perhaps most important point is that a resilient social movement succeeded in getting a meaningful progressive victory in communications policy— an affirmative victory to enact good policy, not a defensive victory to stop bad policy. This success came even on a seemingly arcane and technical regulatory issue of invisible infrastructure, within a policy arena where corporate discourse and dollars dominate. I’ve spent the last eight years following net neutrality and, while I remained cautiously (if, as many told me, irrationally) optimistic throughout that it could get successfully put into policy, even I have to admit that it was quite a long shot to get rules this good from the FCC. Net neutrality policy has a long history of half-steps forward and large tumbles backwards, on a policymaking playing field heavily tilted in favor of the large corporations that set the terms of engagement there. Nonetheless, a strong coalition of media reform and civil rights activists, legal and technologist advocates, and online creators and startups pushed net neutrality forward in the policy sphere and the public sphere. They mobilized millions of citizens to engage with the FCC in its Open Internet proceeding— a powerful popular force in support of net neutrality that made it more than good policy, but also good politics. Some cynical defeatists are content to ignore the real difference made by everyday people’s voices and actions, instead emphasizing the role of the tech industry in lobbying for net neutrality in service of its economic interests. This perspective is not only demeaning and disempowering in terms of activist strategy, but also not very accurate: Google, Amazon, and other tech heavy-hitters mostly sat it out this time around, while smaller outsider tech firms (the likes of Etsy and Kickstarter don’t exactly have much sway inside the Beltway) worked better with the activist coalition.

The second point is this: even though this is a historic victory that should be celebrated, the fight is far from over. This is true in an immediate sense of challenges to the Open Internet rules. Broadband network operators and their allies in Congress are already seeking to block the new rules. The FCC will also surely be sued as soon as the Open Internet rules go into effect, kicking off yet another long legal battle over the agency’s ability to regulate internet infrastructure. It’s worth noting, though, that Comcast and AT&T both have potential mergers being considered by the FCC currently and Verizon’s appeal of the much weaker 2010 Open Internet rules backfired pretty bad on them, making theses corporations perhaps a bit more lawsuit gun-shy than usual (the cable and wireless lobbies look most likely to sue). Regardless, because this time the Open Internet rules are built on the strong and appropriate statutory foundation of Title II, we can be confident that the rules will stand up in court.

But the fight is also not over in a bigger picture sense: as consequential a victory as this is, it is ultimately just one step on a longer journey toward more equitable media structures. On the internet infrastructure front alone, there is much more to be done to ensure faster, more affordable, more inclusive broadband network access (although the other FCC action that same day— to overrule state restrictions on municipal broadband networks— opens a door toward a more promising future of public internet infrastructure for more cities). Having net neutrality meaningfully enshrined in communications regulations, and having FCC policy moving toward treatment of internet access as an essential utility, is huge, but net neutrality has proven a resonant discourse that can speak to critical social justice goals and can be employed more widely. Net neutrality could ultimately end up most historically significant, then, for the powerful discourse and movement that advocates put together around it— if we can build on this success and use this momentum to push forward for more victories like this one.

Obama’s statement calling on the FCC to implement the strongest possible net neutrality regulations in its Open Internet policy proceeding is significant for many reasons: how unusual it is for a sitting president to dive so deep into the weeds of communications regulation, the influence it can have on the policy the FCC actually adopts, and (amazingly) just how right on the President is in his plan. Obama’s net neutrality statement is also especially important, though, for what it signals about the politics of media policy: a legitimate social movement is pushing for fairness and equality in internet access by engaging in historically corporate-dominated policymaking processes and strategically “boring” regulatory discourses to successfully bring undoubtedly arcane yet crucially political media policy issues to the front and center of the national political stage. Simply put, the President wouldn’t jump this far into this fight with powerful phone and cable corporations and their allies in the incoming Republican-controlled Congress (and perhaps even the FCC Chairman he appointed) if it weren’t for wide public pressure to act boldly on net neutrality. The FCC is an independent agency that doesn’t have to answer to the President, so it remains to be seen if any of this is enough to shift the Commission’s current direction in Open Internet rule-making— right now toward a (likely untenable) attempt at compromise through a “hybrid approach”— but at the least it is heartening to see such prominent attention to obscure issues like paid prioritization (known as internet “fast lanes”) and Title II reclassification (somewhat misleadingly being called “utility regulation”).

In Obama’s statement, he surprised nearly everyone by laying out in unambiguous terms an Open Internet policy plan that would deliver pretty much exactly what most net neutrality advocates (myself included) have seen as what has been needed all along: a clear-cut set of rules against blocking and discrimination that apply to both wired and wireless broadband providers and prohibit paid prioritization “fast lane” deals with online content providers, all based in a “common carriage” regulatory framework with legal authority from Title II of the Communications Act. (Yes, this is the super nerdy, but now increasingly central, terrain on which this battle is being fought!) This is a stronger set of rules than those proposed by FCC Chairman Tom Wheeler this past spring and the rules that were previously adopted by the FCC in 2010 but struck down in court in January. As I explained in a post here in the aftermath of that case, the reason why the 2010 rules failed in court (and in enforcement) is that they were not implemented with appropriate legal authority to regulate openness and equal access and if the FCC wants to move forward with meaningful and sustainable net neutrality policy, it has to reclassify broadband. What the Commission needs to do— as called for by advocates for strong net neutrality, now including the President— is to implement Open Internet rules through Title II, where the Commission has authority to regulate essential infrastructure for two-way communications (which internet access clearly is).

This traction in the political debate around net neutrality comes as a result of a popular movement that has seen nearly 4 million public comments to the FCC’s Open Internet proceeding (a record-breaking total, of which up to 99% were in favor of net neutrality), protests and demonstrations both online (like the Internet Slowdown Day) and offline (like occupations of the FCC building and even Chairman Wheeler’s driveway), and John Oliver’s tour-de-force explanation and call to action. All of the public participation in the process (just like the President’s) may not even count for much to the FCC, but it has worked to shift the discursive terrain of the issue and, therefore, the range of possible policy action. Chairman Wheeler has backed away from his initial weak proposal and is now hinting toward wireless broadband regulations and at least partial reclassification.

Right now, though, the FCC is stalling while it decides what to do and its next move will come no sooner than 2015. For passing strong Open Internet protections, Wheeler has the votes at the Commission (with two pro-net-neutrality Democratic commissioners to make a majority with him) and now political support from President, but he may be waiting for more backup from the bigger tech industry players like Google and Facebook, which have been conspicuously quiet in this round of the fight. Strong public pressure will continue to be key to keep up this progress toward meaningful net neutrality policy.

First, what’s actually at stake here? Well, the end of the open public internet and the beginning of separate but unequal private internets, under the control of the giant phone and cable companies in possession of the pipes and airwaves we depend upon for access. The FCC’s Open Internet rules left much to be desired but they were minimum protections to count on and a significant beachhead in the net neutrality battle. Without them, what do we get now? A network where Verizon can charge extra to prioritize traffic and block any service that refuses to pay a toll to reach its users (that’s what it said it would do if it won this case). A network where Comcast can derail video distribution that threatens its cable television business (that’s what it did when it blocked BitTorrent and what it does in favoring its Xfinity service— even though it’s obligated to abide by net neutrality until 2017 as a condition of its merger with NBC-U). A network where AT&T can cut deals with the biggest content providers to exempt their apps from counting against monthly data caps but squeeze out the innovative startups that can’t afford to pay (which it just announced last week with its new Sponsored Data plans). Networks — with pay-to-play arrangements, exclusive fast lanes, unfair competition, and prepackaged access tiers— where that independently-produced web video series, that nonprofit alternative news site, or your own blog are left behind in favor of those that can pay protection money to network operators. In other words, a network that is not the internet as we’ve come to know it— an open network where users can be participants in the creation and circulation of online culture, rather than a closed content delivery system for corporate media. While net neutrality proponents’ rhetoric might seem a bit overblown, we are much closer to a “nightmare scenario” than most realize.

The DC Circuit’s ruling was not against net neutrality itself, but rather the twisted way the FCC attempted to enforce it. The majority opinion actually went out of its way to describe why net neutrality regulations are necessary to curb abuses of power by network operators. It ruled that the Open Internet rules themselves were sound— they were just implemented the wrong way. Coming into the case, the FCC’s authority to regulate broadband at all was in doubt, after the agency was handed its hat by the same court in the 2010 Comcast case. The FCC tried it again this time with a slightly different tack (“even federal agencies are entitled to a little pride,” the majority wrote— federal appeals court humor, folks) and, amazingly, the court bought it this time around (while Verizon called the FCC’s argument a “triple-cushion-shot,” the judges pointed out that in billiards it doesn’t matter how much of a stretch the shot is if you actually make it). However, even though the court affirmed the FCC’s legal ability to regulate broadband, it found that it can’t regulate it the way the Commission wanted to in the Open Internet rules.

The court ruled that the FCC’s net neutrality policy treated broadband providers as common carriers, but that it couldn’t do that because it didn’t have those services classified in the common carriage portion of its legal framework. Basically, it all goes back to the FCC using the term “information service” rather than “telecommunications service” to define broadband starting in 2002. That’s it— this is a case where the importance of discourse, and the power to dominate discourse in the policy sphere, could not be more plain.

Net neutrality is essentially an update to common carriage, the centuries-old principle of openness and nondiscrimination on publicly essential infrastructure for communication and transportation. The FCC has regulated general purpose networks of two-way communication as common carriers since its inception with the 1934 Communications Act (at that time the focus was telephone service). Beginning in the 1980s as part of its influential Computer Inquiries and legally formalized in the 1996 Telecommunications Act, the FCC distinguishes between these basic networks, defined as Title II “telecommunication services” (think pipes), and the content made available over those networks, defined as Title I “information services” (think water flowing inside those pipes). Under this framework, the FCC regulated internet access (the connectivity) as common carriage to ensure equality and universality, but could not regulate the internet itself (the content). As telecommunications services, internet access providers’ job is to pass communications back and forth to the internet, while the information services on the internet are publishers with editorial rights to control content. This all changed during a deregulatory binge at the FCC in the 2000s: cable companies called their broadband connections “information services” (pay no attention to their actual cables), conspicuously not subject to regulation, and then-FCC-Chairman Michael Powell was happy to define broadband that way, too (he’s now the head of the NCTA, the cable industry’s trade group, by the way).

Now, because broadband internet access is not classified as “telecommunications,” it cannot be regulated as common carriage. This means that, as the DC Circuit recognized, since net neutrality is basically common carriage, it cannot be implemented as long as broadband is still defined as an “information service.” So, even though broadband is now the essential general purpose communications infrastructure of our time, there can be no openness and nondiscrimination protections for it until the FCC is willing to change the label it has applied to it in its regulatory terminology. The answer, then, is reclassification: the FCC just needs to call broadband the telecommunications service that it is before we can have enforceable net neutrality policy. The policy really is that simple— it’s the politics that are difficult. The reason that the FCC built the Open Internet rules on legal quicksand is that it lacked the political will to go through with its reclassification proposal amidst a firestorm of pressure from the telecom industry and its allies in Washington.

If we want net neutrality, we should put our own pressure on the FCC. We don’t have the money and the lobbyists that the telecom industry does and we can’t count on the clout of any big corporations whose interests overlap with the public’s on the issue— Google already sold out to Verizon and other big online content providers are now backing away from it (the Amazons and Facebooks of the world have deep enough pockets to dominate the payola market of the future, so they seem willing to play ball at this point). It’s up to us, then, to push the FCC to do net neutrality right this time.

This post will give you some background on the Verizon case and what’s at stake in it. Whether the FCC’s Open Internet rules stand or not is pivotal for net neutrality and the future of the internet— but also isn’t. While net neutrality protections are essential for internet users, the FCC’s Open Internet rules in particular are quite problematic. In some ways net neutrality would be better with these rules and in some ways could be better without them.

Here’s why Verizon v. FCC matters:

1. The rules prohibit the most egregious net neutrality violations. The FCC’s Open Internet rules are based in a deeply compromised version of net neutrality and are far from the strongest protections we could hope for (they were essentially written by Google and— ironically enough— Verizon). In spite of this, though, they are definitely better than nothing. The Open Internet rules bar wired internet access providers from blocking online content, services, applications, and devices or unreasonably discriminating in internet traffic. For instance, this stops Comcast from making youtube.com disappear from your browser (or redirecting it to nbc.com for that matter) and from throttling Netflix’s video streams. The Open Internet rules can be actually stronger than they immediately appear and have potential to be robust safeguards if enforced by the FCC properly.

2. The rules are an important foothold against total deregulation. Underlying the fight over the Open Internet rules is whether the FCC can regulate broadband at all. During a wave of deregulation in the 2000s, the FCC removed almost all of its oversight for internet access and now the agency is left with a shaky legal foundation for the Open Internet rules— what Verizon asserts is not enough authority. The Open Internet rules are important, then, because striking them down would eliminate virtually the last remaining public interest protections for internet access. Beyond that, though, if the courts buy Verizon’s argument in its Open Internet challenge, it would set a very troubling precedent for enforcing net neutrality in policy: the telecom operator says that it has a First Amendment right to “edit” the internet as it sees fit. If the free speech rights of “corporate persons” are allowed to trump the free speech rights of actual people, it doesn’t bode well for the future of the online public sphere.

And here’s why Verizon v. FCC doesn’t matter:

1. The rules haven’t been very effective. Even if the Open Internet rules are allowed to stand, they’re weak enough to allow a lot of net neutrality violations anyway— and for just the sort of activities especially key to the future of the internet. Most glaringly, most of the rules don’t even apply to mobile broadband (which is poised to soon become the dominant means to access the internet and already is primary among the underprivileged). This is why we see AT&T allowed to block FaceTime on the iPhone. Further, the rules don’t apply to “specialized services” (such as IPTV or any other managed service a network operator provides over broadband that isn’t regular internet access). Comcast calls Xfinity a “specialized service,” supposedly separate from the “public internet,” so it’s allowed to favor its own video streaming service by not counting Xfinity-on-Xbox traffic against users’ data caps. In other words, there are many net neutrality abuses not covered by the Open Internet rules.

2. Overturning the rules could actually lead to getting better ones. Paradoxically, there is a possibility that having the Open Internet rules struck down could be for the best in the long run— blowing up the whole thing and starting from scratch may be the only way to get truly effective net neutrality policy. Specifically, if the courts find that the FCC did in fact deregulate itself into oblivion and no longer has any statutory authority to address broadband, the agency could be forced to re-regulate broadband if it wants to actually remain relevant. (To get policy wonky: what the FCC needs to do is reclassify broadband as a “telecommunications service” under Title II of the Communications Act, where it has more authority to implement “common carriage”-based rules like net neutrality than on Title I “information services” where broadband is now). Counting on this outcome is very risky, though, because it’s impossible to know what the FCC will be like under incoming Chairman Tom Wheeler (an enigmatic figure who has inspired both hope and disgust from public interest advocates).

So, protecting net neutrality isn’t as simple as just upholding the FCC’s Open Internet rules— net neutrality could be better off with or without them. It really depends more on what the FCC does— and, crucially, what we as citizens push them to do— after Verizon v. FCC.