We're not ready to endorse the Republican proposal to define the FCC’s authority over Internet access, but we think it is on the right track insofar as it would be Congress giving the FCC clearer direction on its authority to regulate the Web.
It is that lack of clarity that has led a federal court to overturn two FCC Open Internet rulings for lack of legal justification. The third time might not be the charm without some help from the Hill.
The draft legislation got a tire-kicking in hearings last week, but it is a long shot. A bill without Democrats on it is a bill that is headed for a veto, and Democrats were not lining up behind the legislation, given that it would “clarify” that Internet access is an information service, not a telecommunications service subject to Title II.
President Obama was threatening any number of vetoes in his State of the Union speech. So if a Republican bill is passed that precludes Title II reclassification, and does not have Democratic support—which at the moment it does not—the president will almost certainly veto it. He has gone all in for Title II, which will make it hard for Hill Democrats to buck the party leader and support another approach, period.
However, if FCC chairman Tom Wheeler proceeds with a Title II approach to new network neutrality regulations, the rules will be tied up in court. They could then be rejected again if the FCC cannot explain exactly why broadband is a terminating monopoly with insufficient competition when it comes to a handful of Title II rules, but not when it comes to the majority of others.
The most elegant solution would be for Congress to give the FCC clear authority over discrimination and blocking and anticompetitive paid prioritization, while allowing for flexibility and choice, specialized services that don’t run over the public Internet and, perhaps, user-directed prioritization.
That would require a seemingly unfamiliar happenstance in Washington—Congressional compromise. Democrats would have to back off of opposition to specialized services, which some of them see as a way to get prioritization through the back door. Republicans might have to back off their provision “clarifying” that Sec. 706 is not a grant of authority. Republicans have been trying to rein in the FCC’s use of 706 as pretty much a blank check to regulate in the name of broadband build-outs. That includes saying, with a straight face, that broadband is not being built out in a reasonable and timely fashion, and moving the goalposts on speed.
Whatever happens, the president needs to put a bit more distance between himself and independent agencies such as the FCC and the Federal Trade Commission. He has as much as told the FCC to reclassify under Title II and strongly suggested it preempt state broadband regs. The president also went to the FTC two weeks ago to advise it on privacy. A little more separation of the powers that be is in order.