FCC vote won’t end net neutrality fight

The Federal Communications Commission is expected to approve so-called “net neutrality” Thursday, but the fight over sweeping new regulation of the Internet may be just beginning.

The vote represents the culmination of an unprecedented clash in Washington over the future of the Internet — and the beginning of an onslaught of legal challenges to treating the technology like a public utility.

After highly dramatic, confusing and disputed deliberations, the FCC’s commissioners are expected to approve the Obama plan. The vote comes despite loud reservations expressed by some commissioners, accusations of improper White House involvement in the work of an independent agency, and uncertainty about how voluminous new regulations could affect the rapid growth and innovation of new media that many Americans have come to expect to over more than two decades.

Defenders of the FCC’s expected action argue that net neutrality, which they define as providing equal access to all Internet content and prohibiting providers from charging more for faster delivery of such material, will endure in the face of questions about the process.

On the eve of the FCC’s vote, Republicans resisted the notion that they had backed down in the net neutrality fight. Though conservatives won’t unveil alternative legislation to the FCC blueprint before the vote, Republicans say the legislative debate is far from over.

Here is what to watch for in Thursday’s vote — and beyond.

Does Title II go too far?

The FCC blueprint would treat the Internet like a public utility, which supporters argue is necessary to keep service providers from slowing traffic for those not paying higher prices.

Critics counter that the Internet is not broken, and therefore, does not require the same level of regulation that the government applies to roads or telephone service. Republicans say such a designation will stifle innovation — they are working on separate legislation that doesn’t rely on the Title II of the 1934 Communications Act.

“Where we need a scalpel, the FCC is picking up a sledgehammer,” warned Robert Atkinson, president of the Information Technology and Innovation Foundation, in a Capitol Hill hearing on net neutrality Wednesday. “Reclassification risks untold unintended consequences including higher network costs, reduced network performance and reduced network investment.”

In other words, some conservatives argue that Title II of the Depression-era law, which covers common-carrier communication providers, could effectively slow service for 21st-century Internet users, rather than just prevent the development of so-called fast lanes.

Democrats say that unless Washington mandates an equal playing field, services providers would charge Netflix or Apple higher rates to deliver their content at the fastest speeds.

Also complicating the push is that FCC Chairman Tom Wheeler last year resisted seeking Title II status for the Internet, but then reversed course in the face of pressure from President Obama and the majority of 4 million people who filed public comments to the FCC about net neutrality.

“Chairman Wheeler’s flip-flop, at the urging of the White House, from pursuing basic open Internet rules to what now appears a full-force effort to transform broadband into a public utility, threatens to end nearly twenty years of bipartisan policy favoring ‘light touch’ regulation for the Internet, perhaps the most successful approach to regulating an emerging technology in history,” argued Larry Downes, project director at the Georgetown Center for Business and Public Policy.

Why so much secrecy?

The more-than-300-page plan commissioners will vote on Thursday has been shielded from the public and lawmakers.

Republicans had called on Wheeler to testify Wednesday on the net neutrality proposal but were forced to postpone the hearing after he declined to appear.

Republicans say the lack of transparency is disconcerting, considering the scope of the framework.

“As Chairman Wheeler pushes forward with plans to regulate the Internet, he still refuses to directly answer growing concerns about how the rules were developed, how they are structured, and how they will stand up to judicial scrutiny,” House Energy and Commerce Committee Chairman Fred Upton, R-Mich., and Oversight and Government Reform Committee Chairman Jason Chaffetz R-Utah, said in a statement Wednesday.

“After hearing from over four million Americans on such an important topic to our economic and cultural future, it’s striking that when Congress seeks transparency, Chairman Wheeler opts against it,” they added.

The White House also declined to answer questions about its level of involvement in the process. Obama made public calls for the FCC to adopt net neutrality, but the White House has been mum about its efforts behind the scenes.

And conservative FCC commissioners say Wheeler should postpone a vote until the public can review the details of the plan.

“Here is Obama’s revised 317-page plan to regulate the Internet,” tweeted FCC commissioner Ajit Pai on Wednesday. “The public still can’t see it. I’m voting no.”

A delay of the vote appears unlikely, however. The broader question is how the lack of public debate might influence broader perceptions of the plan.

What will the courts say?

Even if the FCC endorses net neutrality Thursday, the plan may not immediately go into effect.

Industry groups expect at least one of the major Internet service providers to file a lawsuit and request that the latest regulations not be enshrined until the legal process plays out.

Critics are quick to point out that the current predicament came after a federal court tossed the previous set of rules established by the FCC for regulating the Internet.

Wheeler is banking that reclassification will help the new regulations sustain court challenges. And supporters say the reclassification status was essential to the Obama administration’s broader legal strategy.

The previous court decision “confirmed our worries about the 2010 rules when the court vacated the rules and remanded them back to the FCC for action,” Gene Kimmelman, president and CEO of Public Knowledge, a nonprofit that supports the Obama-backed plan, said Wednesday.

“The D.C. Circuit Court decision in Verizon pointed to reclassification as the only option under the FCC’s current authority which the FCC might use to institute true non-blocking and non-discrimination rules,” he explained.

Net neutrality represents just the latest component of the Obama agenda likely to be decided by the judicial branch. The fates of the president’s policies on healthcare and immigration already rest in the hands of the courts.

What is the Republican game plan?

Republicans have been accused of retreating on net neutrality, as they opted not to unveil their own bill to counter the FCC plan in advance of the agency’s vote.

Conservatives blamed Democrats for stepping away from negotiations ahead of the agency’s decision.

Conservatives would like to enact reforms that embrace elements of net neutrality but don’t go so far as to reclassifying broadband as a public utility.

Republicans face an uphill battle in crafting legislation that can make it through both chambers and withstand an all-but-certain veto from Obama.

Yet they are vowing not to abandon their efforts.

“Tomorrow’s commission vote does not signal the end of this debate, rather it is just the beginning,” Upton, the Michigan Republican, said in a hearing Wednesday.

Pointing out that the Obama-backed blueprint could lead to years of litigation, Upton implored Democrats: “Let’s work together to avoid those landmines.”

Given their silence on the compromise, though, Democrats seem more than willing to take their chances with the courts.

“It’s not happening,” said one veteran Democratic Senate aide of whether Democrats would embrace GOP proposals. “This is sound policy. It’s not extreme. It’s going to happen, period.”

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