For five years, one FCC commissioner held firm in net neutrality fight

Just one member of the Federal Communications Commission who will vote on net neutrality tomorrow was on the commission the last time it tackled the issue in 2010.

Mignon Clyburn, a Democrat, took office in August 2009 and soon thereafter argued that the FCC should pass a far stronger version of net neutrality than it ultimately approved. She said that rules preventing broadband providers from interfering with Internet traffic should apply fully to wireless carriers and that the FCC should use its Title II authority to regulate broadband providers as common carriers.

Julius Genachowski, the chairman at the time, ultimately pushed a plan that did not fully apply to wireless and relied on the commission’s weaker authority under Section 706 of the Telecommunications Act. Clyburn voted in favor of the plan to get rules in place but made it clear she wanted a stronger net neutrality regime.

“Left to my own devices, there are several issues I would have tackled differently. As such, I am approving in part and concurring in part to today’s Order,” she said in her statement on the plan passed in December 2010. “First, I would have extended all of the fixed rules to mobile, so that those consumers who heavily or exclusively rely upon mobile broadband would be fully protected… Second, I would have prohibited pay-for-priority arrangements altogether… Finally, earlier this year I stated my preference for the Commission’s legal authority over broadband Internet access service. While the route taken here is not the one I originally preferred, I believe that it is appropriate for the Commission to act to protect an open Internet. I know there will be many lawyers studying the legal authority cited in this Order in the weeks, months, and perhaps years ahead, and judicial review ultimately will determine the fate of this Order. I sincerely hope that the Commission’s authority to protect consumers’ access to an open Internet is upheld.”

Clyburn had declared her support for Title II in June 2010. MIchael Copps, then a Democrat on the commission, credited Clyburn with “thoughtful and creative work” to make the rules better for consumers, but said, “I pray that our timidity will not undermine the spirit of the Order that we are adopting.”

Clyburn’s prediction that using the FCC’s weaker authority could lead to failure in court proved correct. Verizon sued and won when a federal appeals court said the FCC erred by imposing per se common carrier obligations on broadband providers without first classifying them as common carriers.

Before President Obama appointed Clyburn to the FCC, she spent 11 years on South Carolina’s public service commission, and prior to that she was publisher and general manager of a family owned newspaper. The commissioner is the daughter of US Rep. Jim Clyburn (D-SC), who has been in Congress for more than two decades. She served as acting chairwoman of the FCC from May 2013 until November 2013, between the tenures of former chairman Genachowski and current Chairman Tom Wheeler. Today, Clyburn is part of a 3-2 Democratic majority with Wheeler and Commissioner Jessica Rosenworcel.

Wheeler was chairman when the court overturned most of the net neutrality order in January 2014. Initially, he proposed continuing to rely on Section 706, enforcing rules against blocking and throttling but allowing paid prioritization agreements in which Web services pay for priority access. After the FCC received four million public comments and the input of President Obama, Wheeler changed course. Clyburn told reporters yesterday that “Wheeler’s proposal is ‘reflective of where I was in 2010, that is, attempting to strike a balance’ between the needs of consumers and companies,” the Huffington Post reported.