President Obama has called for the Federal Communications Commission to “implement the strongest possible rules to protect net neutrality” by reclassifying broadband networks as telecommunication services and bringing them under the same regulations as phone networks. In doing so, the president has cast his lot firmly on the side of those calling for aggressive new Internet rules and stuck his finger in the eye of such companies as Verizon (VZ) and Comcast (CMCSA) as well as the newly empowered Republicans in Congress.
Obama wants to stop Internet providers from treating different kinds of traffic differently. He called for restrictions against slowing or blocking websites, more transparency on the deals between content companies and Internet providers, and a ban on charging fees for faster service. He also said that wireless networks should be covered by the same rules, reversing an exemption from the FCC’s 2010 Internet rules.
But the real bombshell for people who have been following this debate over the past year is that the president is weighing in on how the FCC should claim the legal authority to do these things. From Obama’s statement:
“So the time has come for the FCC to recognize that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do. To do that, I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act—while at the same time forbearing from rate regulation and other provisions less relevant to broadband services. This is a basic acknowledgment of the services ISPs provide to American homes and businesses, and the straightforward obligations necessary to ensure the network works for everyone—not just one or two companies.”
Many consumer groups have been calling for this exact action for months, and the political tide has been shifting in their favor. Obama’s statement alone carries no power because the FCC itself will decide on the rules. But it puts political pressure on FCC Commissioner Tom Wheeler, who has lately been pursuing the option of adopting some portion of Title II in a so-called hybrid approach that makes no one happy. “Whether in the context of a hybrid or reclassification approach, Title II brings with it policy issues that run the gamut from privacy, to universal service, to the ability of federal agencies to protect customers,” he said, “as well as legal issues ranging from the ability of Title II to cover mobile services to the concept of applying forbearance on services under Title II.”
The telecommunications industry isn’t happy. Verizon quickly issued a statement questioning where such a move was “legally sustainable,” a veiled threat at a lawsuit. “Reclassification under Title II, which for the first time would apply 1930s-era utility regulation to the Internet, would be a radical reversal of course that would in and of itself threaten great harm to an open Internet, competition, and innovation,” said Edward McFadden, a spokesman for the company. The CTIA, an industry group for the wireless industry, said the regulations are antiquated and inappropriate.
Obama’s timing is interesting. Wheeler has said he wants new rules in place by the end of the year, although the Wall Street Journal reported Friday that he’s considering delaying until 2015. The president’s statement also comes on a day that started with activists picketing Wheeler’s house and is scheduled to end with a “Vigil to Save the Internet.”
Plus, it hasn’t even been a week since the midterm elections went very badly for the president’s party. While net neutrality hasn’t been an perfect litmus test for partisan loyalties, it is unlikely that the Republicans who now control the House and the Senate will support the idea. Obama’s action is a break from all the happy talk of focusing on issues that both parties agree on.
Still, if the FCC follows Obama’s lead and passes rules based on reclassifying broadband under Title II, there is little the Republicans in Congress can do about it. At least, not in the short term. It seems likely that another lawsuit would follow reclassification, denying everyone any sense of clarity from new rules. And as that issue winds through the courts, Republicans may also start working to change the law that gives the FCC its power.
In the immediate aftermath of last Tuesday’s midterms, Republicans said they would start the process of overhauling the 1934 Telecommunications Act. Such an action would open up the issue over Internet rules to include the government’s approach to television and phone calls, too. It could also take long enough that Obama will have left the Oval Office.
