A proposal as sweeping as moving Internet providers into regulation under Title II of the Communications Act is sure to gather criticism.
When Federal Communications Commission Chairman Tom Wheeler announced that he was sending a proposal doing just that to his fellow commissioners, that's exactly what happened. But unlike the usual partisan reactions that characterize any efforts at change in Washington, some of what's being heard is actually constructive criticism.
Part of the problem has been that Wheeler chose not to release the actual proposal publicly and instead just sent it as an internal FCC document. Because of this, the first knowledge of what the proposal contained came from Wheeler's own statements, which given the proposal's 300-plus page length were necessarily limited.
Now, one of the first people to actually see Wheeler's proposal, another FCC commissioner, has released his thinking on what is in the proposal. Commissioner Ajit Pai, one of the Republican minority members on the commission, has released his own critique of Wheeler's proposal, and as you might expect, he has found things he doesn't like.
According to Pai, the proposal gives the FCC the power to micromanage every aspect of how the Internet works and includes the ability to impose new taxes on the Internet, even though no new taxes are included in the current proposal. In addition, Pai says the Wheeler proposal explicitly contains language giving the FCC power to regulate rates for Internet access.
Pai also suggests that the Wheeler proposal will lead to new litigation, which is a virtual certainty no matter what proposal the full commission approves. He also contends that it will reduce Internet access and bandwidth, the reality of which depends on how you interpret Title II and on what provisions of the act the FCC decides to waive enforcement. In any event, because Pai is one of the minority commissioners, he has limited ability to actually change the Title II proposal.
Congress, meanwhile, is investigating the FCC chairman's actions, suspecting undue influence by the White House into the operations of a supposedly independent agency. This is because Wheeler's net neutrality plan is a lot like what President Barack Obama suggested in a speech in November.
Perhaps most important is that it's Congress that makes the rules that the FCC must follow. What this means is that Congress can write legislation that solves a number of problems for the FCC, notably those pesky court decisions that have found that the agency has exceeded its authority. Those decisions are the reason why the FCC is revisiting all of this now.
To this end, the Senate Committee on Commerce and the House Energy and Commerce Committee have both scheduled hearings on Feb. 21 that could lead to legislation that would essentially give the FCC exactly what it wants without resorting to Title II.