The Behind-the-Scenes Battle for the Future of the Internet

The noise over net neutrality is coming from Congress, but the real action is elsewhere.

National Journal
Brendan Sasso
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Brendan Sasso
Feb. 6, 2014, 6:49 a.m.

Demo­crats can’t do any­thing about a court rul­ing that struck down their cher­ished net-neut­ral­ity rules, but they know someone who can.

The now-van­quished “Open In­ter­net” rules were the province of the Fed­er­al Com­mu­nic­a­tions Com­mis­sion, and that’s where Demo­crats are pin­ning their hopes to re­store them.

At stake, they say, is no less than the fu­ture of the In­ter­net. The FCC’s rules re­quired In­ter­net ser­vice pro­viders to treat all web­sites equally. Demo­crats fear that without the rules, In­ter­net pro­viders could soon start slow­ing down ac­cess to web­sites like Net­flix and Google un­less the sites pay for spe­cial In­ter­net “fast lanes.” The In­ter­net pro­viders could even block ac­cess to par­tic­u­lar sites al­to­geth­er.

In Con­gress, top House and Sen­ate Demo­crats launched le­gis­la­tion Monday aimed at restor­ing the rules, at least while the FCC crafts new ones. But that’s all for show: The bill is dead on ar­rival in the House, where Re­pub­lic­ans have long des­pised the FCC’s net-neut­ral­ity rules — vir­tu­ally every one of them voted to re­peal the rules in 2011. Per the GOP, the reg­u­la­tions are an out­dated, un­ne­ces­sary, and bur­den­some in­tru­sion in­to the busi­ness de­cisions of In­ter­net pro­viders such as Com­cast and Ve­r­i­zon.

In­stead, the Demo­crats’ bill is aimed at mak­ing their voice heard at the site of the real fight for the fu­ture of the In­ter­net: the FCC. The rep­res­ent­at­ives are beg­ging com­mis­sion Chair­man Tom Wheel­er to act uni­lat­er­ally to re­store the rules.

“It is con­gres­sion­al pres­sure,” a Demo­crat­ic aide said, adding that the le­gis­la­tion shows that Demo­crats on the Hill will stand be­hind Wheel­er if he moves to re­in­state the rules. “Many seni­or mem­bers be­lieve that the FCC needs to take ac­tion — that simply ac­cept­ing the court’s de­cision is not sat­is­fact­ory.”

And Wheel­er has all the votes he needs to do so; he’s an Obama ap­pointee and at the head of an ideo­lo­gic­al ma­jor­ity on the five-mem­ber com­mis­sion. The ques­tion now is wheth­er he’ll take ac­tion, and how.

He has a few op­tions for try­ing to sal­vage the reg­u­la­tions, which were first pro­mul­gated by his pre­de­cessor, Ju­li­us Gen­achow­ski, in 2010. Wheel­er could ap­peal the de­cision, but with a un­an­im­ous rul­ing against the FCC from a three-judge pan­el of the Court of Ap­peals for the D.C. Cir­cuit, the agency’s chances don’t look good.

The most dra­mat­ic op­tion would be to re­clas­si­fy broad­band In­ter­net as a “tele­com­mu­nic­a­tions ser­vice,” which the FCC has broad au­thor­ity to reg­u­late. Re­clas­si­fic­a­tion would put the rules on firmer leg­al ground but would prompt an im­me­di­ate back­lash from con­gres­sion­al Re­pub­lic­ans, who would view the move as a gov­ern­ment takeover of the In­ter­net.

The FCC has sweep­ing powers over phone com­pan­ies, down to the prices they charge and the areas they serve. Im­pos­ing a sim­il­ar reg­u­lat­ory re­gime on the In­ter­net would strangle its growth, Re­pub­lic­ans fear. The FCC could re­clas­si­fy broad­band while also im­pos­ing cer­tain lim­its on its own abil­ity to reg­u­late, but that re­straint may do little to ap­pease the agency’s crit­ics.

An­oth­er op­tion would be to try to re­work the rules un­der the ex­ist­ing au­thor­ity.

Al­though the court struck down the spe­cif­ic rules in the case, it did up­hold the FCC’s over­all au­thor­ity to reg­u­late broad­band pro­viders. Wheel­er could start a new rule­mak­ing pro­cess or just an­nounce the prin­ciples he in­tends to pro­tect un­der the agency’s cur­rent powers. But re­work­ing the rules would al­most cer­tainly mean wa­ter­ing them down.

Har­old Feld, the seni­or vice pres­id­ent for con­sumer ad­vocacy group Pub­lic Know­ledge, ex­pressed doubt that the FCC will be able to en­act ef­fect­ive reg­u­la­tions without re­clas­si­fy­ing broad­band as a tele­com­mu­nic­a­tions ser­vice.

“[FCC of­fi­cials] may be think­ing that they can pick off enough of the most ob­vi­ous forms of ab­use that it would be ad­equate,” he said. “I don’t think it would be.”

Feld noted that be­cause Demo­crats con­trol the White House and the Sen­ate, Re­pub­lic­ans can’t pass le­gis­la­tion to undo an FCC de­cision to re­clas­si­fy broad­band. “People get paid to do their job,” Feld said. “And one of the things that every­body said about Wheel­er that was go­ing to be so great was that he was go­ing to have the spine and will­ing­ness to do his job, and he wasn’t go­ing to chick­en out just be­cause people make a lot of noise.”

The Demo­crat­ic Hill aide said law­makers are in­ten­tion­ally try­ing to leave Wheel­er’s op­tions open and not dic­tate what ac­tion he should take. But the aide said most Demo­crats be­lieve the FCC needs to have some kind of net-neut­ral­ity rules on the books.

“The ac­tion right now is at the FCC. The ball is in their court,” the aide said.

Wheel­er has re­peatedly stated that he is com­mit­ted to pro­tect­ing a free and open In­ter­net. Speak­ing after the FCC’s meet­ing last week, he said he is still look­ing at “all of the tools in the tool­box” and that the agency will an­nounce a “plan and ra­tionale shortly” for deal­ing with net neut­ral­ity.

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