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Every so often here in Washington, D.C., you get the overwhelming urge to wish a pox on the houses of both sides of an issue. The current debate on network neutrality is one of those issues.
Politicians on both sides of the network neutrality debate are turning what should be a discussion on finding ways to further the interests of technology users into a political shoving match.
For reasons that remain unclear, President Obama issued a statement shortly after leaving on a trip to Asia that attempted to pressure the Federal Communications Commission (FCC) into adopting Title II as a way to include Internet service providers (ISPs) in existing neutrality regulations. Title II refers to the Communications Act, which gives the FCC the power to regulate communications in the U.S. Title II was originally intended to make sure that telephone companies provided service to anyone in their coverage area.
“We cannot allow Internet service providers to restrict the best access or to pick winners and losers in the online marketplace for services and ideas,” Obama said in a statement released by the White House. “That is why today, I am asking the Federal Communications Commission to answer the call of almost 4 million public comments, and implement the strongest possible rules to protect net neutrality.”
How should the FCC do this according to Obama’s statement?
“I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act—while at the same time forbearing from rate regulation and other provisions less relevant to broadband services.”
What Obama is asking the FCC to do is to apply part of Title II to the Internet, but not all of it. Exactly how the agency should choose which parts of Title II to enforce and which parts not to enforce is left as an exercise for the reader.
The FCC, for its part, pointed out that it is an independent agency. “We will incorporate the President’s submission into the record of the Open Internet proceeding,” Chairman Tom Wheeler said in a statement responding to the President’s statement.
Meanwhile, Senator Ted Cruz (R-TX) reacted by calling the administration’s position on net neutrality “Obamacare for the Internet.”
Organizations of all stripes are taking positions on the FCC’s Open Internet process. The TIA (Telecommunications Industry Association) has come out against classifying the Internet as a utility (which is what Title II would do), saying it would harm consumers and calling such a thing a “failed policy.”
On the other hand. Common Cause and the CCIA (Computer and Communications Industry Association) thinks that regulating the Internet under Title II is a good idea. “A groundswell of millions of comments supporting the Open Internet is evidence of the importance of having effective rules preventing paid prioritization and discriminatory treatment,” CCIA President and CEO Ed Black said in a prepared statement that urged the FCC to move to include ISPs under Title II.
Network Neutrality Debate Descends Into Political Shoving Match
But others aren’t so sure. Brent Skorup, a research fellow at the Mercatus Center at George Mason University said the “President’s announcement is puzzling because the political consensus is that the 1934 Communications Act should be retired in favor of modern, flexible laws that place consumers—not industries—at the forefront.” In a subsequent interview with eWEEK, Skorup said that putting ISPs under Title II is an overreach on the part of the FCC.
Skorup noted that the idea of the FCC to use forbearance on parts of Title II that don’t apply to the Internet would be an almost impossible task, given the months or years that it could take for the FCC to decide exactly how to apply forbearance, assuming it could find a legal way to do so that would survive the inevitable judicial review.
Meanwhile, the FCC and customers of ISPs would be left in a sort of technology limbo, never knowing for sure exactly how the rules would apply, which rules might apply and. if they were to apply, how the FCC would enforce them, considering, as Skorup notes, that Congress is mostly silent on the issue even in the most recent updates to the communications laws.
On the other hand, recent history has shown that communications companies don’t necessarily have customers’ best interests in mind, as AT&T, which handles both wireless and cable Internet communications, has demonstrated. In one case, the carrier was found to be “cramming customer’s bills with charges for services never ordered, and in another, fudging on unlimited data plans.
Clearly, there needs to be some means of making sure that ISPs treat consumers fairly, but it’s by no means clear that Title II is the right way. But Sen. Cruz notwithstanding, enough carriers have tried to pull a fast one on their own customers that some kind of control appears to be necessary.
The problems with purely regulatory controls are many and not the least of which is that the federal courts have found that the FCC lacks the statutory authority to do this. But just because the agency currently lacks authority it needs doesn’t mean it has to be that way. There’s really nothing to prevent the White House and the Congress from drafting legislation that would give the FCC the authority it needs to protect consumers without interfering with innovation.
Let me rephrase that. There’s nothing except stupidity, and sadly there’s been that in abundance in both the Congress and the White House. If both sides could work together, there could be a solution, but we all know that will never happen. Thus my wish for a pox on both their houses.