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There seems to be an assumption making the rounds here in Washington that the Federal Communications Commission’s vote on network neutrality, scheduled for Feb. 26, will end the debate on the issue.
The notion is that, once the FCC adopts and then starts enforcing rules that put the Internet under Title II of the Communications Act, national policy will be decided on the issue for good. Nothing could be father from the truth.
Actually, the real fight will begin as soon as the FCC votes that the Internet should be regulated under Title II. ISPs that don’t want the regulation will file lawsuits that prompt one or more judges to impose legal stays that prevent the commission from enforcing its new rules.
What eventually happens to the FCC rules is anyone’s guess. But in the past, the courts have not looked kindly on the FCC’s efforts to regulate the Internet.
In Congress, meanwhile, there is action on another approach to protecting Internet users from the ravages—real or perceived—of carrier greed. Hearings in the House Energy and Commerce Committee the day before the FCC vote focused on the risks of simply allowing the FCC to proceed with its plans. The top concern is that, if the FCC Title II enforcement effort gets tied up in the federal courts for years, there may be no net neutrality rules in force at all.
“I am concerned that, either through successful court challenges or through actions of a future FCC with a different partisan majority than the current FCC, all network neutrality protections may be lost,” said former Congressman Rick Boucher (R-VA) in his Congressional testimony.
Boucher, who is honorary chairman of the Internet Innovation Alliance, said that an FCC vote to apply Title II regulations on the Internet could result in years of uncertainty and eventually the loss of any form of net neutrality.
“A court decision will not be made until well into the next presidential administration,” Boucher said. “If a Republican wins the 2016 presidential election, the new administration would be unlikely to support a writ of certiorari to the U.S. Supreme Court if the rules are struck down by a U.S. Court of Appeals. It would be unlikely that in such an event the FCC in a Republican administration would initiate a new network neutrality proceeding. In fact, it is probable that an FCC with a Republican majority would, as an early order of business, undertake a reversal of the reclassification order” that will likely be approved by an FCC vote on Feb. 26.
Boucher pointed out that draft legislation already being circulated by Republicans in Congress embodied the protections that Democrats have been seeking for years.
Other witnesses predicted a dim future for the FCC’s actions because it failed to follow the federal court recommendations in a 2014 Verizon case that tossed out the FCC’s previous attempt to regulate net neutrality.
Hearing Witnesses Warn FCC Net Neutrality Initiative Doomed to Failure
“Abandoning the Verizon court’s ‘roadmap’ in favor of a public utility regime, as the chairman has not hesitated to acknowledge, introduces considerable legal uncertainty that, at best, will mean another two years or more without resolution to the Open Internet debate. Proposed legislation would quickly and cleanly resolve the FCC’s persistent jurisdictional problems and enact precisely the rules called for in President Obama’s plan,” said Larry Downes, project director for the Georgetown Center for Business and Public Policy.
Downes said that the current actions by the White House and the FCC are placing Silicon Valley and other technology centers into an unnecessary period of uncertainty.
“This week, in the name of protecting the Open Internet and its core principles, the FCC is on the brink of following the president’s instructions” and transforming the Internet into a public utility, he said. This plan “seems more designed to serve short-term political goals than the long-term health of the most valuable technology platform invented since the Industrial Revolution,” Downes said in his testimony.
The observations of these witnesses and others highlight the strange transformation of political views on how much regulation should be imposed on the Internet. There was a time when the Republican minority in Congress opposed all efforts at net neutrality, always claiming instead that the free market was the only force that should govern how open the resource of the Internet should be. It was the Democrats that advocated a light touch, not interfering more than necessary.
Now, with the legislation that’s making its way through the new Republican majorities in the House and Senate, it appears that the light touch to net neutrality and an open Internet is being advocated by the Republicans. It’s the Democrats who want to impose a heavier hand.
Unfortunately, the result of these conflicting approaches is that net neutrality could get crushed in the struggle. The FCC, for its part, seems to be making a partisan effort to conform closely to President Obama’s call for the Internet to be regulated under Title II of the communications act, a move that will only lock up the FCC’s decision in judicial gridlock for years.
The Republicans, meanwhile, are offering legislation that appears to give the Democrats exactly what they want, if only they could stand the idea that it was the Republicans that thought it up.
Unfortunately, the FCC has let partisan politics intrude into what should be a decision based on what’s good for the users of the Internet, not on what’s going to gratify the White House.
As distasteful as it might be for the Democrats, the Republicans are offering a solution that gives them what they want without it being tied up in the courts for years.
According to comments by ranking Democratic House member Anna Eshoo, the legislation really only needs a little extra work. Maybe it would be better for everyone if some sane heads outside of the FCC take a close look at the situation and make the better potential solution work.