Will the Democratic majority commissioners support the President's clarion call and thwart GOP opposition to an open Internet?...
By Ernest A. Canning on 11/12/2014, 3:38pm PT  

On Monday, President Barack Obama, both in a surprisingly clear written statement and video-taped announcement (posted at end of this article), called upon the Federal Communications Commission (FCC) to adopt "bright-line" rules that would ensure an "open and free" Internet via the concept of "net neutrality" --- a concept that would, in the President's words, ensure there "are no gatekeepers deciding which sites you get to access. There are no toll roads on the information superhighway." Anything less, the President proclaimed, "would threaten to end the Internet as we know it."

Though oversight similar to that called for by the President resulted in a record number of public comments (99% in favor) to the FCC, predictably, the President's announcement drew harsh reactions not only from the handful of corporations which could profit from those Internet highway tolls, but from their Republican allies. Following Obama's comments, Sen. Ted Cruz (R-FL), for example, quickly denounced "net neutrality", if somewhat cryptically, as "Obamacare for the Internet."

Republican opposition would amount to little more than public grousing, however, if, in accordance with the President's recommendations, the five Obama-appointed FCC Commissioners (only three can be of the same party) carefully craft new regulations that "reclassify Internet service under Title II of...the Telecommunications Act," a reclassification that would undo the damage wrought by the Republican George W. Bush-appointed FCC Commissioners in 2002.

The question for now is: Will they?...

Overcoming adverse appellate ruling

Last January, the U.S. Circuit Court of Appeal in D.C., in Verizon Communications, Inc. v. Federal Communications Commission, struck down an "Open Internet Order" that had been adopted in 2010 by a sharply divided FCC (3-2 with the two George W. Bush-appointed Republican FCC Commissioners, Robert M. McDowell and Meredith Attwell Baker, dissenting).

The court struck down the Open Internet Order not because of substantive deficiencies in the concept of "net neutrality," but because the FCC had failed to first reverse regulations that a Republican-controlled FCC had adopted in 2002.

The issue entails the FCC's regulatory authority under the Telecommunications Act of 1996. As the Court of Appeal observed at the time, during the Clinton administration, the FCC "classified Digital Subscriber Line (DSL) services --- broadband Internet service furnished over telephone lines --- as 'telecommunications services'" within the meaning of the Act. That classification was critical to the FCC's authority to regulate broadband Internet service providers and keep them from charging more (or less) to access certain Internet websites.

However, in 2002, the George W. Bush appointees to the FCC reversed that classification. The FCC "determined that cable broadband providers...were...not telecommunication carriers" --- a reclassification that exempts broadband providers "from Title II" regulations that would otherwise allow the FCC to oversee Internet access in a way that is similar to a utility, like electricity.

In essence, since those 2002 classification remained in place, the FCC, by reason of its own rules, lacked the authority to impose its "net neutrality" regulations on entities that were "not telecommunications carriers" and therefore not subject to FCC regulation under Title II.

Monday's Presidential announcement reflects his recognition that the FCC can overcome that adverse appellate court ruling by carefully adopting a rule that would undo the damage wrought by the Bush-appointed FCC commissioners back in 2002.

Limits to GOP obstruction

As the President accurately noted, the FCC is an independent, five-member commission. Commissioners, who are appointed by the President and must be confirmed by the Senate, serve five-year terms, thus overlapping different Presidential administrations. Though three are Democrats and two are Republican, all five current FCC Commissioners are Obama appointees.

That is a product of Obama's having been elected to two terms. Elections do, indeed, have consequences. Nevertheless, there is a prospect that the Obama-appointed Commissioners may seek a watered down version of net neutrality.

FCC Chairman Tom Wheeler, a Democrat, said he hoped "to get the job done correctly, once and for all, in order to protect consumers and innovators online." He then suggested he may not be completely on board with the President's recommendations, stating that he wanted to address seemingly irreconcilable concerns of Internet service providers (ISPs) like Comcast, Time Warner Cable and AT&T. "What I've got to figure out is how to split the baby," he said.

While advocates for an open Internet were jubilant after Obama's surprisingly clarion remarks earlier this week, Wheeler's apparently waffling has since dampened some of their enthusiasm.

It is important to note that this is one area where a major segment of corporate America is actually aligned with the public for a change. That segment is what the Court of Appeal referred to as "edge providers," which globally involve some "150 firms including Amazon, Microsoft and Google." They would be directly affected if Internet Service Providers, like Comcast, AT&T and Verizon, were allowed to charge different rates and use different speeds for access to different Internet sites. As observed by The Guardian: "Like Obama, they called for the FCC to take 'the necessary steps to ensure that the internet remains an open platform for speech and commerce so that America continues to lead the world in technology markets'."

There is no splitting of the baby on the core issue. Either ISPs are subject to Title II or they are not. If the FCC reclassifies, there would be little the GOP could do to block net neutrality.

While the GOP can certainly use its majorities in Congress to seek an amendment to the Telecommunications Act of 1996 in order to undo even the most carefully crafted reclassification, such amendments would surely face a Presidential veto. So, at least for the next two years, the FCC is positioned to adopt net neutrality rules that should withstand both legislative and judicial scrutiny.

The real question that arises in relation to Wheeler's "split the baby" remark is whether the FCC will have the integrity to adopt the President's proposed "bright-line rules."

'Bright-line rules'

The White House net neutrality statement asks the FCC to adopt "bright-line rules, that would include:

*No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player - not just those commercially affiliated with an ISP - gets a fair shot at your business.

*No throttling. Nor should ISPs be able to intentionally slow down some content or speed up others - through a process often called "throttling" - based on the type of service or your ISP's preferences.

*Increased transparency. The connection between consumers and ISPs - the so-called "last mile" - is not the only place some sites might get special treatment. So, I am also asking the FCC to make full use of the transparency authorities the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet.

*No paid prioritization. Simply put: No service should be stuck in a "slow lane" because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet's growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect.

* * *

The 11/10/2014 video of President Obama's 'net neutrality' remarks follow below, followed by an amusing video describing the interests of companies like AT&T in killing net neutrality (NOTE: The second video below was originally published at The BRAD BLOG in 2007 and features Brad Friedman as the voice of then AT&T CEO Ed Whitacre.)

And here's a comedy video that captures the ISP position...

* * *
Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.