Technology

Why Republicans Suddenly Love Net Neutrality

Key GOP lawmakers are frantically working to stop the FCC from treating the Internet like a utility.

U.S. Sen. John Thune (R-SD) speaks on Capitol Hill October 12, 2011 in Washington, DC. Senate Republicans spoke to reporters briefly after attending their weekly Senate Republican Policy Committee closed luncheon meeting. (Photo by Mark Wilson/Getty Images)
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Brendan Sasso
Jan. 15, 2015, 1:11 p.m.

In the past month, Re­pub­lic­ans have com­pletely re­versed them­selves on net neut­ral­ity.

For years, mem­bers of the party have de­cried net-neut­ral­ity reg­u­la­tion as a “gov­ern­ment takeover of the In­ter­net” that would “re­strict our In­ter­net free­dom.”

But now, top GOP law­makers are frantic­ally work­ing on net-neut­ral­ity le­gis­la­tion that’s even stronger than what many Demo­crats sup­por­ted in pre­vi­ous years.

It’s as though Re­pub­lic­ans were to sud­denly de­cide to cham­pi­on Obama­care.

At this point, push­ing strong net-neut­ral­ity le­gis­la­tion is the only hope that Re­pub­lic­ans have to keep the Fed­er­al Com­mu­nic­a­tions Com­mis­sion from clas­si­fy­ing In­ter­net pro­viders as pub­lic util­it­ies like phone com­pan­ies. They fear that move would strangle the In­ter­net with even more oner­ous reg­u­la­tions.

“Clear and reas­on­able rules are what every busi­ness and con­sumer needs and ex­pects — this also ap­plies to the In­ter­net,” Sen­ate Com­merce Com­mit­tee Chair­man John Thune said in a state­ment late Wed­nes­day.

Thune out­lined 11 prin­ciples for net-neut­ral­ity le­gis­la­tion that would bar In­ter­net ser­vice pro­viders from block­ing web­sites, se­lect­ively slow­ing down traffic, or cre­at­ing spe­cial “fast lanes” for sites that pay more. Im­port­antly, the rules would ap­ply to In­ter­net con­nec­tions both at home and on mo­bile devices.

A spokes­man for the House En­ergy and Com­merce Com­mit­tee said Chair­man Fred Up­ton and Rep. Greg Walden, the chair­man of the Com­mu­nic­a­tions Sub­com­mit­tee, have been work­ing with Thune and are on board with the new prin­ciples. The House and Sen­ate Com­merce com­mit­tees have planned hear­ings for next Wed­nes­day as well.

WHY THE CHANGE OF HEART?

The FCC first en­acted net-neut­ral­ity rules in 2010, but a fed­er­al court struck them down early last year. In­ter­net act­iv­ists ar­gued that the only way the FCC could en­act new rules that could hold up in court would be to in­voke its broad powers un­der Title II of the Com­mu­nic­a­tions Act.

At first, FCC Chair­man Tom Wheel­er pro­posed new rules that wouldn’t have re­lied on Title II, but he re­versed him­self in the face of a massive pub­lic back­lash. In Novem­ber, Pres­id­ent Obama stepped in and urged Wheel­er to re­clas­si­fy broad­band as a “tele­com­mu­nic­a­tions ser­vice” un­der Title II.

Broad­band pro­viders fear that the net-neut­ral­ity fight is about to res­ult in the FCC seiz­ing sweep­ing powers over their busi­ness op­er­a­tions.

The FCC could use Title II to not only over­see how the pro­viders man­age traffic, but also set re­tail prices, im­pose new gov­ern­ment fees, and de­term­ine which cus­tom­ers they have to serve. Wheel­er has said he would waive un­ne­ces­sary pro­vi­sions of Title II, but that has been little com­fort to the broad­band pro­viders.

The Re­pub­lic­an net-neut­ral­ity bill would bar the FCC from clas­si­fy­ing In­ter­net ser­vice un­der Title II. In­stead, it would grant the FCC new au­thor­ity only to deal with net neut­ral­ity.

“Clear stat­utory au­thor­ity from Con­gress is ne­ces­sary to up­date FCC au­thor­ity for the In­ter­net Age, es­cape court chal­lenges, and avoid reg­u­lat­ory over­reach from out­dated laws,” Thune said.

Broad­band pro­viders like Com­cast and Ve­r­i­zon are will­ing to ac­cept net neut­ral­ity rules as long as it means they can avoid Title II. 

Bri­an Di­etz, a spokes­man for the Na­tion­al Cable and Tele­com­mu­nic­a­tions As­so­ci­ation, which rep­res­ents the ma­jor cable pro­viders, said the group is “en­cour­aged” by the dis­cus­sions in Con­gress. “While we will re­serve judg­ment on spe­cif­ics, we be­lieve Con­gress can play a con­struct­ive role in of­fer­ing mean­ing­ful open In­ter­net rules,” he said.

The GOP le­gis­la­tion would also neu­ter an­oth­er source of FCC au­thor­ity over the In­ter­net. The FCC’s 2010 net-neut­ral­ity rules re­lied on Sec­tion 706 of the Tele­com­mu­nic­a­tions Act, a neb­u­lous pro­vi­sion that says the agency can “pro­mote the de­ploy­ment” of broad­band.

The Re­pub­lic­an prin­ciples state that new le­gis­la­tion should cla­ri­fy that Sec­tion 706 doesn’t ac­tu­ally give the FCC any power. But the FCC has been us­ing Sec­tion 706 for more than just net neut­ral­ity. Without Title II, it’s the only oth­er real tool the FCC has to reg­u­late In­ter­net pro­viders.

Killing Sec­tion 706 would un­der­cut the FCC’s plan to pree­mpt state laws that lim­it cit­ies from build­ing their own broad­band net­works. Just this week, Obama urged the FCC to over­turn the state re­stric­tions to en­sure that loc­al gov­ern­ments can de­liv­er high-speed In­ter­net to their res­id­ents if they choose. The FCC plans to vote in Feb­ru­ary on pe­ti­tions from Chat­tanooga, Tenn., and Wilson, N.C., to in­voke Sec­tion 706 to pree­mpt their states’ laws against city-owned broad­band.

The is­sue could prove to be a stum­bling block to com­prom­ise. But the Re­pub­lic­ans haven’t even form­ally un­veiled their le­gis­la­tion yet, so there is still time for ne­go­ti­ation.

HOW WILL THE RIGHT AND LEFT RE­ACT?

Re­pub­lic­an lead­ers in both cham­bers are bend­ing over back­wards to find a com­prom­ise on net neut­ral­ity. But will oth­er con­ser­vat­ives be will­ing to give in so far?

Re­pub­lic­an Sen. Ted Cruz of Texas, a mem­ber of the Com­merce Com­mit­tee, once mem­or­ably re­ferred to net neut­ral­ity as “Obama­care for the In­ter­net.” But Phil No­vack, a spokes­man for Cruz, down­played any rift with Re­pub­lic­an lead­ers.

“One of the biggest threats to the In­ter­net is the pro­spect of turn­ing it in­to a pub­lic util­ity un­der Title II FCC reg­u­la­tion,” No­vack said. “Sen. Cruz is op­tim­ist­ic that the com­mit­tee is look­ing at ways to avoid this ser­i­ous threat and looks for­ward to hav­ing a vig­or­ous dis­cus­sion on how we can best en­sure the In­ter­net re­mains a for­um for free­dom and in­nov­a­tion.”

Even if Re­pub­lic­ans can unite their caucus be­hind a strategy to avoid Title II, Demo­crats might not see any reas­on to help them.

Sen. Bill Nel­son of Flor­ida, the top Demo­crat on the Com­merce Com­mit­tee, con­firmed that he is dis­cuss­ing the is­sue with Re­pub­lic­ans.

“I look for­ward to work­ing with them to en­sure any such changes keep the In­ter­net free and open, and don’t stifle in­nov­a­tion,” he said in a state­ment. “Be­cause I be­lieve con­sumer pro­tec­tion should come first, the FCC must have flex­ible en­force­ment au­thor­ity.”

Oth­er Demo­crats are less sup­port­ive.

Sen. Al Franken, a Min­nesota Demo­crat, blas­ted out an email to sup­port­ers Thursday, warn­ing them that Re­pub­lic­ans will push a “watered-down bill that’s ex­actly … what the op­pos­i­tion and their lob­by­ists want.”

In an op-ed on The Huff­ing­ton Post, Craig Aaron, the pres­id­ent of act­iv­ist group Free Press, ad­mit­ted that “on the sur­face, the Re­pub­lic­an pro­pos­al looks al­most reas­on­able.”

But don’t be fooled, he warned.

“This pro­posed le­gis­la­tion should be ex­posed for what it is: a cyn­ic­al ef­fort by the cable lobby to pre­vent the FCC from en­for­cing the law to keep the In­ter­net open. Why would we trust the fiercest op­pon­ents of Net Neut­ral­ity to pro­tect our In­ter­net free­dom?”

Aaron and Har­old Feld, the seni­or vice pres­id­ent of con­sumer ad­vocacy group Pub­lic Know­ledge, both ex­pressed con­cern that the Re­pub­lic­an prin­ciples don’t seem to ad­dress po­ten­tially an­ti­com­pet­it­ive forms of In­ter­net traffic dis­crim­in­a­tion, aside from block­ing and throt­tling.

In a re­cent in­ter­view with tech news site CNET, the FCC’s Wheel­er said Con­gress “ob­vi­ously has a role.” But he isn’t plan­ning to delay a vote on his rules, which is cur­rently sched­uled for Feb. 26.

“We have been at this for a year, and it’s time to shoot,” Wheel­er said.

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