President Obama’s announcement yesterday that he supported “the strongest possible rules on Net Neutrality” rocked the Internet. By coming out in full-throated support of reclassification of broadband under Title II of the Telecommunications Act, the president made it unequivocally clear he stood for true Net Neutrality.
Support for Title II reclassification is a big deal. It’s what the broadband providers — that is, cable and phone companies like Comcast and Verizon — vehemently oppose. It’s also what civil liberties groups, consumer advocates, dozens of Members of Congress, and hundreds of online innovators support. In September, Internet freedom groups including Demand Progress organized the historic Internet Slowdown Day in support of Net Neutrality, and a record 3.7 million comments on the matter have been submitted to the FCC, the overwhelming majority of them in support of Net Neutrality.
Under Title II, broadband services would be classified as “common carriers.” This means they could not discriminate among traffic. Broadband providers couldn’t cut deals with websites to make some traffic faster, while other traffic languishes in the slow lane. It keeps Verizon and Comcast from exerting undue influence over what we can access on the Internet. Under Title II, the FCC would have greater ability to make sure providers weren’t cutting special deals, which would favor deep-pocketed corporations and squeeze out smaller independent media and marginalize the activists and democratic movements to which the open Internet has given a louder voice. These concerns are not just hypothetical. In one underreported example of why Net Neutrality is so vital to democratic participation, in 2005, Telus, a Canadian broadband provider, blocked users from accessing a website run by a union involved in a labor dispute with the company.
Backlash from the usual suspects after the president’s announcement yesterday was predictable. Sen. Ted Cruz clumsily tweeted that Net Neutrality is “Obamacare for the Internet,” which provoked ridicule from many corners. Some anti-Title II groups claimed the president had missed an opportunity to lead on a legislative deal. But this notion represents Washington establishment thinking at its worst. Leadership means standing with the people — not picking the midpoint between their will and that of the rent-seeking conglomerates that look to use their monopolies to extract new fees from Internet users and web platforms. For anyone who has been following the years-long Net Neutrality debate, it’s apparent that the president’s choice yesterday was a bold act of leadership on an issue that desperately needed it.
To understand why, consider what has transpired with Net Neutrality since 2010. That year, a court ruled in Comcast v. FCC that the FCC didn’t have the jurisdiction to enforce Net Neutrality. That’s because broadband services were not classified as common carriers under Title II. At the time, then-FCC Chairman Julius Genachowski came out in favor of Title II reclassification but backed down under pressure from broadband providers. In 2010, the FCC again issued weak Net Neutrality rules, which again failed to reclassify broadband under Title II. Verizon challenged the rules, and the court, to no one’s surprise, struck them down. The court had made it clear: If you want the FCC to enforce Net Neutrality, you must reclassify.
But reclassification is anathema to the cable and phone companies, who are some of the top spenders in Washington. They bristle at the thought of being made to follow clear-line Net Neutrality rules. Ironically, however, it was the providers’ opposition to lighter-touch approaches that got us here. Not only did Verizon sue to overturn the 2010 rules — and in the process claimed editorial discretion when transmitting the speech of others online — but when a so-called “hybrid” proposal was recently floated, which would classify only some broadband services under Title II, the broadband providers threatened to challenge it in court. And the fact is, without full Title II reclassification, the providers would probably win such a challenge. It became obvious to the president and others in the pro-Net Neutrality camp that there was no middle ground — for Net Neutrality, it was either full Title II or bust. Anything less would not only be opposed by broadband providers but would also get struck down in court.
So what was the president, who campaigned vigorously on Net Neutrality and said he would “take a backseat to no one” on the issue, to do? The courts twice overturned FCC rules not grounded in Title II authority, and the broadband providers had threatened to sue to overturn a hybrid compromise. Recognizing that Net Neutrality meant Title II reclassification, he did what presidents are supposed to do: He led, even when it meant drawing the ire of some of Washington’s most moneyed and entrenched corporate interests. The irony is that by suing and threatening legal action over lighter-touch, non-Title II rules, the cable and phone companies forced the president’s hand. This hubris very well may be their downfall in this fight.
But the Net Neutrality fight is not yet over. Attention now turns to the presidentially-appointed FCC Chairman Tom Wheeler, who finds himself increasingly isolated on this issue. Despite saying that he has always been in agreement with the president on Net Neutrality, Wheeler, a big-time fundraiser for Obama’s campaigns and a former top lobbyist for the cable industry, has not yet to come out in support of Title II. In a statement yesterday, the Chairman coolly said that the FCC would incorporate the president’s comments into the record. The fact remains that the FCC is an independent agency, and it isn’t compelled to follow the direction of the president. But the president’s announcement now gives Wheeler the cover, and the direction, he needs. The White House should keep up the pressure on the Chairman. The choice will then be Wheeler’s: He can either side with the cable and phone companies he once lobbied for, or he can stand with the president and the millions of Americans who have spoken out in favor of strong net neutrality.
The Chairman has indicated that the Commission might need more time to consider all options, despite the fact that its final Net Neutrality rule is due in December. At this point, though, the choice should be clear. Wheeler now has a chance to be a hero by embracing a path to true Net Neutrality reform. If and when he does, the Republican Congress will surely try to strip the FCC of its authority, but they do not have enough seats to overcome a Democratic filibuster or a presidential veto. That would leave the courts as the last refuge for cable and phone companies to overturn Net Neutrality rules, but with an authority grounded in Title II, the rules could withstand legal challenge.
The president’s announcement yesterday opened the lanes for true Net Neutrality. Now it’s up to Chairman Wheeler and the FCC to get us the rest of the way there.