Net Neutrality announcement tees up court battle

Net Neutrality announcement tees up court battle

Say hello to the FCC’s newly-dubbed “New Rules for Protecting the Open Internet”.

From The Hill:

Tom Wheeler, head of the Federal Communications Commission (FCC), announced Wednesday that he will be circulating to his colleagues the “strongest open Internet protections ever proposed by the FCC,” made up of “enforceable, bright-line rules.”

The proposal will ban Internet service providers such as Comcast or Verizon from blocking or slowing access to content online. It will also ban “fast lane” deals that speed up online services, and extend the rules to cellphones and tablets for the first time.
“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,” Wheeler wrote in an op-ed in Wired.

The decision by Wheeler is a reversal from last year, when he was pursuing a plan that critics warned could lead to a “two-tiered Internet,” with some companies cutting deals to operate in the “fast lanes.”

This is a different result than many anticipated; Wheeler had been working for months on a compromise solution that would have maintained “light touch” regulations on internet providers, in sharp contrast with the agenda President Obama backed. The White House threw its full support behind the regulations that were announced today, and ginned up support for them though months of secretive meetings with online activists, startups, and telecomm companies.

In a piece for the New Republic, David Dayen explains how liberal activists achieved a serious coup on the issue of Net Neutrality. You should read the whole thing, but this is perhaps the most relevant snippet:

Activists took advantage of splits between Wheeler and fellow Democratic commissioners Jessica Rosenworcel and Mignon Clyburn, who were more hesitant than Wheeler to approve Internet fast lanes. It’s an open secret that Rosenworcel wants to become FCC chair someday. So activists understood that targeting Democratic members of Congress, who could eventually have a say in confirming Rosenworcel, would be another way to reach her. In the end, Congress offered more support for Title II reclassification than ever before, and Rosenworcel clearly heard this. In fact, Wheeler’s plan for “hybrid” Title II authority, focused on access issues rather than things like rate-setting, looks most like a proposal from former Congressman Henry Waxman.

Wheeler became less the leader of the FCC than the swing vote; if he wanted to pass anything resembling net neutrality, his options were limited beyond Title II reclassification. He found himself trapped by his prior statements of steadfast support for an open Internet, much as President Obama was constrained by a similar history.

Obama announced his support for reclassification in November as the only way to attain true net neutrality; his handpicked chairman could hardly try to peddle anything less than that and get away with it. This allows Obama to pocket a victory at a time when the last two years of his presidency will be marked by playing defense against a Republican Congress. If he wants to leave a legacy in the twilight of his term, it will have to happen at the agency level. Activists understood this and urged the president to make his position known to Chairman Wheeler, and they succeeded.

So, there it is. At least they’re honest about the means they’re willing to embrace to achieve their end goal.

Dayen is right, though. This was a coup. A coup that received national attention and held the tech community, conservative and liberal, in thrall for years. Even now, with so much information out there, the pro-NN cause is hard to fight because so many of the biggest voices in the opposition don’t truly understand how these policies would affect the average American.

Pro-NN activists understand that it’s not over yet, but they’re confident that if they can move forward from agency regulations to legislation, they’ll have a better chance of making sure these policies are here to stay.

Conservatives, however, are drawing a connection between what Wheeler has done with tech policy, and what SCOTUS dinged the EPA for doing in Utility Air Regulatory Group v. Environmental Protection Agency:

“Tom Wheeler just shot himself in the foot,” said Berin Szoka, President of TechFreedom. “He just admitted that what the FCC is doing is effectively rewriting the law to suit its political agenda. Just last year, the Supreme Court blocked the EPA from doing much the same thing. The FCC was always going to face a difficult court fight, but Wheeler’s grandiose framing makes it even more clear that the FCC is heading for its third loss in court on net neutrality.”

“Wheeler has flip-flopped on two clear promises,” continued Szoka. “First, during his confirmation, Tom Wheeler promised Congress he’d seek Congressional authorization if the FCC lost in court. Now, he’s thwarting ongoing Congressional attempts to resolve the issue. Second, when the FCC proposed its rules, Wheeler promised that interconnection ‘is a different matter that is better addressed separately.’ Now, he’s expanding the concept of net neutrality beyond anything it’s ever meant. What’s next on the FCC’s slippery slope?”

Long story short: this isn’t over. The battle over Net Neutrality is just one piece of the war against excessive government regulation.

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