On February 26, the Federal Communications Commission (FCC) will vote on proposed new regulations to better protect net neutrality on the Internet. The proposal, drafted under the direction of FCC chairman (and President Barack Obama appointee) Tom Wheeler, will use a process known as "reclassification" to essentially treat both wired and wireless broadband as public utilities.
If adopted by the five-member FCC, the new regulations could open the door for significant oversight and regulation of the companies that provide Internet access and backbones to an increasingly dependent American populace.
Details of the proposal are still sketchy, although Wheeler said in a recent Wired op-ed that the "enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply for the first time ever those bright-line rules to mobile broadband. My proposal assures the rights of Internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission."
Partisanship Comes to the FCC
This is the FCC's third attempt to establish new regulations for net neutrality, but the first to contemplate regulating broadband as a public utility. The commission's first draft in 2008 was rejected by the federal courts, which ruled that the FCC had failed to follow its own established procedures for rule-making. Last year, the federal courts again rejected FCC net neutrality rules on the grounds that they were unlawful absent a "reclassification."
Unlike his recent predecessors, Wheeler has political support for this significant step. In the wake of the last rejection of net neutrality rules, activists lobbied the White House aggressively on the issue, and Obama called on the FCC to undertake the necessary reclassification.
Two of the other four FCC members are Democrats, making it likely that Wheeler will be able to get his proposal adopted when it comes to a vote later this month.
As the Political Pendulum Swings?
Republicans in Congress are not enthusiastic about the FCC's pending embrace of a treasured liberal policy position. Senator John Thune (R-SD), the new chairman of the Senate Commerce Committee, is in the process of drafting legislation that he said will protect net neutrality without risking the potential for what Republicans and telecommunications industry executives view as potentially onerous regulations.
It is doubtful that any Republican-led legislation could get past Obama's veto pen without including reclassification, a fact that underscores the importance of securing the White House in 2016. If a Republican wins the presidential election, it raises the specter that a more ideologically conservative FCC chairman will be elected, and that the commission will abruptly abandon its regulation of broadband and net neutrality.
At least one long-time net neutrality activist is convinced that won't happen, if even a Republican president is elected. Tim Wu, a professor at Columbia Law School who is credited with creating the phrase "net neutrality," argued that if the public supports the idea of broadband as a public utility, it will be difficult for a Republican White House or the FCC to reverse the policy.
We reached out to Ryan Radia, Associate Director of Technology Studies at the Competitive Enterprise Institute, to get his thoughts on the net neutrality issue. Radia told us that with the FCC’s announcement on Wednesday regarding Title II reclassification, its credibility as an independent, expert agency just suffered a huge blow.
"FCC Chairman Tom Wheeler clearly preferred a different path, as the agency’s May 2014 notice of proposed rulemaking makes clear," he said. "But he was strong-armed by the White House and President Obama into supporting the wholesale regulation of Internet service providers as common carriers. Congressional leaders have already expressed their displeasure with this move, and the FCC is sure to face legislative blowback -- and deservedly so."
Wheeler's decision also sets a precedent that future administrations will be hard-pressed to ignore, Radia added. "The next time a Republican wins the White House, and new leadership is installed at the FCC, political considerations will loom larger than ever," he said.
"It’s only a matter of time before the agency changes course yet again, unless Congress steps in and sets clear boundaries on the FCC’s authority -- or simply phases out the agency and shifts its authorities elsewhere in the federal government," Radia said. "For now, however, legislation seems unlikely to become law, while the agency can expect to spend the next several years in court."