“Hope” for Net Neutrality?

November 13, 2014
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On Monday, one more voice was added to the millions that have already urged the FCC to protect net neutrality (the standard that all users and uses of the internet should receive equal treatment from network operators like Comcast, Verizon, and AT&T). This comment was particularly notable, though: it came from President Obama.

Obama’s statement calling on the FCC to implement the strongest possible net neutrality regulations in its Open Internet policy proceeding is significant for many reasons: how unusual it is for a sitting president to dive so deep into the weeds of communications regulation, the influence it can have on the policy the FCC actually adopts, and (amazingly) just how right on the President is in his plan. Obama’s net neutrality statement is also especially important, though, for what it signals about the politics of media policy: a legitimate social movement is pushing for fairness and equality in internet access by engaging in historically corporate-dominated policymaking processes and strategically “boring” regulatory discourses to successfully bring undoubtedly arcane yet crucially political media policy issues to the front and center of the national political stage. Simply put, the President wouldn’t jump this far into this fight with powerful phone and cable corporations and their allies in the incoming Republican-controlled Congress (and perhaps even the FCC Chairman he appointed) if it weren’t for wide public pressure to act boldly on net neutrality. The FCC is an independent agency that doesn’t have to answer to the President, so it remains to be seen if any of this is enough to shift the Commission’s current direction in Open Internet rule-making— right now toward a (likely untenable) attempt at compromise through a “hybrid approach”— but at the least it is heartening to see such prominent attention to obscure issues like paid prioritization (known as internet “fast lanes”) and Title II reclassification (somewhat misleadingly being called “utility regulation”).

15003287537_b16bdc6d26_zIn Obama’s statement, he surprised nearly everyone by laying out in unambiguous terms an Open Internet policy plan that would deliver pretty much exactly what most net neutrality advocates (myself included) have seen as what has been needed all along: a clear-cut set of rules against blocking and discrimination that apply to both wired and wireless broadband providers and prohibit paid prioritization “fast lane” deals with online content providers, all based in a “common carriage” regulatory framework with legal authority from Title II of the Communications Act. (Yes, this is the super nerdy, but now increasingly central, terrain on which this battle is being fought!) This is a stronger set of rules than those proposed by FCC Chairman Tom Wheeler this past spring and the rules that were previously adopted by the FCC in 2010 but struck down in court in January. As I explained in a post here in the aftermath of that case, the reason why the 2010 rules failed in court (and in enforcement) is that they were not implemented with appropriate legal authority to regulate openness and equal access and if the FCC wants to move forward with meaningful and sustainable net neutrality policy, it has to reclassify broadband. What the Commission needs to do— as called for by advocates for strong net neutrality, now including the President— is to implement Open Internet rules through Title II, where the Commission has authority to regulate essential infrastructure for two-way communications (which internet access clearly is).

This traction in the political debate around net neutrality comes as a result of a popular movement that has seen nearly 4 million public comments to the FCC’s Open Internet proceeding (a record-breaking total, of which up to 99% were in favor of net neutrality), protests and demonstrations both online (like the Internet Slowdown Day) and offline (like occupations of the FCC building and even Chairman Wheeler’s driveway), and John Oliver’s tour-de-force explanation and call to action. All of the public participation in the process (just like the President’s) may not even count for much to the FCC, but it has worked to shift the discursive terrain of the issue and, therefore, the range of possible policy action. Chairman Wheeler has backed away from his initial weak proposal and is now hinting toward wireless broadband regulations and at least partial reclassification.

Right now, though, the FCC is stalling while it decides what to do and its next move will come no sooner than 2015. For passing strong Open Internet protections, Wheeler has the votes at the Commission (with two pro-net-neutrality Democratic commissioners to make a majority with him) and now political support from President, but he may be waiting for more backup from the bigger tech industry players like Google and Facebook, which have been conspicuously quiet in this round of the fight. Strong public pressure will continue to be key to keep up this progress toward meaningful net neutrality policy.


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2 Responses to “ “Hope” for Net Neutrality? ”

  1. Greeney28 on November 13, 2014 at 2:59 PM

    Hey Danny, glad to hear your thoughts about this. I actually was writing about this the other day, and my tone was much more pessimistic. Am I naive, though, to think Wheeler is actually trying really hard? I think he wants to do something good, but I think “good” for him means trying to make everyone happy. Which is folly, of course. I also think he genuinely believes his job is to create an environment that is positive for competition, which means he has to defer to what he perceives as valid concerns of the broadband industry (people that he is depending upon to expand access). Obama came out strong after a devastating defeat–too little too late? Political cover when Wheeler tries to cut the baby in half?

  2. Danny Kimball on November 13, 2014 at 4:30 PM

    Thanks for the comment, Karen! I completely agree that Wheeler wants to do the “right thing,” but he’s operating from a definition of “right thing” that is far too mired in industry discourse (both broadband industry and tech industry) to see the forest for the trees. (I really do think he means well and actually don’t think he’s a bad guy— frankly, the “cable and wireless industry stooge” label is a bit unfair, as he was working for them back when those industries were the upstarts fighting against the dominant incumbents which they have now become.)

    I think Obama’s plan is the actual right thing, though, and that throwing his weight behind reclassification both shows and shapes its shift from “nuclear option” to politically viable. Wheeler says he thinks that Obama’s plan is “simplistic” and “naive”— that the President doesn’t get how they have to work with the broadband industry to get anything done. But there’s good reason to worry less about convoluted compromises and just make the bold move that needs to be made.

    I think the public pressure has made strong net neutrality (including reclassification) a winning political issue, therefore, providing incentives to actually push things in the right direction. I think Obama wants to keep that campaign promise for net neutrality and figures that, after the huge midterm defeat, he has little left to lose— so if you’re gonna go, go all out. That is, the Republican Congress is going to throw a fit over any Open Internet rules the FCC passes (even weak “baby splitting” ones), probably turning those “kill the FCC!” House resolutions into actual bills that make it through the Senate and onto Obama’s desk, which he figures he can then make a big spectacle out of vetoing and fire up the young tech-savvy progressives the Democrats need to actually show up at the polls in 2016. I think Wheeler ought to take a similar approach— Verizon (at the least) is going to sue no matter what he does, so he may as well just go with a common carriage approach that gives stronger legal authority and works closer to net neutrality anyway.