Obama’s Strange Challenge to Net Neutrality

For months, President Obama has been under pressure from liberals, many Democrats in Congress, special issue groups such as the Electronic Frontier Foundation, and a fair chunk of the tech companies such as Google and Netflix to act to regulate internet network neutrality. Today he finally took action after waiting for a Republican election victory that could well make the action impossible.

The main effect of Obama’s statement is to move the regulation of internet communications from Title I to Title II of the Telecommunications Act. Services under Title I, designed primarily for cable TV, are lightly regulated. Title II is designed for telephone services and would require approval–and might provide for outright blockage–for such step as extra charges for the delivery of higher network speeds for things like TV content.

Personally, I believe the issue to be extremely complicated and find it difficult, perhaps impossible, to see a simple decision to support either side. Obama’s position looks like he is throwing support to liberal Democrats and law school and computer science departments. Obama led EFF to announce:

This is an important moment in the fight for the open Internet. President Obama has chosen to stand with the us: the users, the innovators, the creators who depend on an open internet. But the fight isn’t over yet: we still need to persuade the FCC to join him. Stay tuned for ways you can help.

Conservatives and regulation foes found this a simple move to oppose. Says libertarian Berin Szoka, president of TechFreedom:

Title II is a wolf in sheep’s clothing. A radical fringe has dressed up a government takeover of the Internet as ‘Net Neutrality.’ Google, Facebook, and the NAACP haven’t jumped on the Title II bandwagon, because they know better. Imposing public utility regulations on the Internet won’t create Net Neutrality, but the heavy hand of government will crush innovation and investment in broadband.

But the history of the situation makes it less likely that post-election Obama can change anything. First of all, the current position of the FCC goes back to January, when the D.C. Circuit Court of Appeal struck down an earlier FCC decision that set up network neutrality rules. The network neutrality provision was the work of Obama’s first FCC chair, Julius Genachoski. Thomas Wheeler, the second term chair, decided to try to come up with a new regulatory plan rather than appeal to the Supreme Court. Wheeler responded with some very squishy support that ended with a statement that suggests the issue be left to the big boys.:

I am grateful for the input of the President and look forward to continuing to receive input from all stakeholders, including the public, members of Congress of both parties, including the leadership of the Senate and House committees, and my fellow commissioners. Ten years have passed since the Commission started down the road towards enforceable Open Internet rules. We must take the time to get the job done correctly, once and for all, in order to successfully protect consumers and innovators online.

With two Republican FCC commissioners all but certain to oppose the Obama plan, it would take the full support of Wheeler for a 3-4 majority (and that assumes votes for by Democratic members Mingon Clyburn and Jessica Rosenworcel).

Then there’s the Court. If the Obama plan were to be approved by the FCC, the opposition of opponents such as Verizon, Comcast, and Time Warner Cable, are certain to appeal to the D.C. Circuit (which has automatic justice over FCC decisions). The Republicans, who now control the Senate, are certain to oppose Obama’s attempt to fill vacant seats, so the old conservative appeals court is as unlikely to support a new FCC net neutrality move as the old one.

Finally, should the court somehow let the FCC do it, the Republicans who control both the House and Senate would  be likely to overrule them. (Although the split on net neutrality is not naturally a partisan split, politics has now overcome the issue.) When you consider the opponents of net neutrality need only prevent new action, always the easier course, the prospects for nothing happening for the next two years are likely.