A number of key questions hang over the vote by the Federal Communications Commission in late February on sweeping new regulations for how to regulate the Internet.
When FCC Chairman Tom Wheeler last week announced a blueprint mirroring President Obama’s call for net neutrality, it prompted new queries over the White House’s role in the process, consumer rights, the future of Internet service providers and perhaps most importantly, the ensuing battle in the courts.
That the clash has garnered so much national debate is a remarkable feat, given the degree to which it was previously reserved for tech circles.
Here are the four major questions surrounding the FCC’s Feb. 26 vote on net neutrality.
How heavily was the White House involved?
Though the FCC is an independent agency, Obama repeatedly called for new rules he thought commissioners should implement.
And the stance Wheeler is now taking is dramatically different from the approach he championed in 2014, one that prompted complaints about so-called fast lanes and spawned a grassroots movement behind the idea of net neutrality.
Republicans contend it’s no mistake that Wheeler’s proposal so neatly aligned with Obama’s wishes for how the FCC would regulate the Internet — both a Senate and House committee are now investigating the matter.
“The FCC’s new position on net neutrality is not only a monumental shift from Chairman Wheeler’s original net neutrality proposal but also a large deviation from the light regulatory touch applied to broadband services since the Clinton administration,” wrote Sen. Ron Johnson, R-Wis., in a letter to Wheeler on Monday. “The decision is wrong, and the process raises serious questions about the president’s inappropriate influence over what is supposed to be an independent agency that derives its authority from Congress and not the White House.”
Republicans are pointing to efforts by White House aides to mobilize outside groups to build support for net neutrality.
The FCC has spent recent days fighting that charge.
“I think what the president’s statement did was, rather than force the chairman’s hand, was give him cover to do something he already was thinking about doing,” Gigi Sohn, the FCC’s special counsel for external affairs said on C-SPAN Friday.
White House officials insist they did nothing to directly interfere with the review being conducted by the FCC, even as Obama took the unusual step of wading into the regulatory matter.
“Net neutrality has been built into the fabric of the Internet since its creation — but it is also a principle that we cannot take for granted,” Obama said in November. “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. 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.”
Why Title II?
Wheeler’s proposal calls for the Internet to be managed like a public utility.
Defenders of the proposal are banking that the Title II defense will allow this version of rules for the Internet to sustain an expected barrage of legal challenges, which doomed previous incarnations of the plan.
Backers say this is the only way to truly keep Internet providers from slowing traffic for those not paying higher prices.
Still, the FCC must eventually convince a court that it has has the authority to invoke Title II on the Internet after resisting that designation for so many years.
And some observers say that politics, not policy, is driving the about-face by the leader of the FCC.
“Title II reclassification for the Internet and net neutrality are bad policy proposals that simply refuse to die,” said Matthew Glans, a senior policy analyst at the Heartland Institute, a free-market think tank. “Title II regulations are a throwback to a system that no longer exists and is ill-suited to today’s dynamic Internet and broadband markets. The Internet has never really been neutral, and the best way to ensure fair service is to promote competition by reducing, not increasing, the amount of regulation.”
Is it too burdensome?
Republicans say that they, too, are opposed to throttling, blocking and paid prioritization online, but argue that such issues should be addressed through legislation, not regulating the Internet like a public utility.
Conservatives believe that expanding the government’s handling of the Internet will only stifle growth.
They are proposing to keep broadband Internet’s current classification as an information service under the Communications Act, essentially excluding service providers from the types of not-discrimination statutes applied to public utilities.
“This is a reasonable alternative,” said a Senate GOP staffer heavily involved in the crafting of such legislation. “This is just another example of overreach by the Obama administration. They need to step back and really think about the unintended consequences here. The Obama-Wheeler plan is truly bad for business.”
Yet, supporters argue that the latest FCC proposal mostly strikes a middle ground that will protect innovation and consumers’ rights.
Wheeler “will forbear from imposing many of the provisions in Title II that were developed for telephone service,” said Corynne McSherry, intellectual property director at the Electronic Frontier Foundation. “Most of those rules just don’t make sense when we’re talking about Internet infrastructure. Forbearance is how we help ensure the FCC does what is necessary — and no more.”
How long will the court battle last?
If the FCC approves the Wheeler plan on Feb. 26, it won’t put the net neutrality debate to rest.
Internet providers are already preparing a series of legal challenges to the Title II classification, a fight that could extend well beyond the time Obama leaves offices.
Critics are quick to point out that the latest clash over net neutrality came after a court tossed the previously established federal guidelines for an “open Internet.”
“Everyone should strap in for a while,” said a veteran lobbyist representing a major telecommunications company. “I don’t know exactly how it’s going to play out. I just know it could take a long, long time.”
