What, in plain words, did Obama do?
The president called on the FCC to enact strong, clear, bright-line bans on prioritization, and he called on the agency to use its most powerful authority, which is known in the lingo as Title II authority, which is in part the power to declare a [telecommunications] carrier a common carrier.
He seems to have gone farther than you did in the April FCC filing you co-authored that proposed splitting the Internet lengthwise into a sender lane and receiver lane.
We said in that filing that there were two strong ways to bring back net neutrality. One was what we called a sender-side hybrid approach. The other was simply to reclassify [broadband as a Title II service]. We kinda put it out there as a thought experiment. We also said the most straightforward way to do net neutrality was reclassification, or, to be technical, the reversal of the 2002 Cable Modem Order [that determined that broadband Internet would be treated by the FCC as a more lightly-regulated Title I service, passed as part of a deregulatory push under the George W. Bush administration]. He didn't go further. He agreed with one of the two approaches.
This is plain vanilla, old-school net neutrality. No flourishes or fancy business. The subtle thing is that there's two ways of using Title II. You could simply use Title and not forbear from anything. That's not the approach the president's recommending. What the president's recommending is using Title II as a source of authority, you use the words "unjust and unreasonable" and from that you come up with a full set of net neutrality rules. He seems to be doing the latter approach.
And in terms of the legal defensibility of that approach?
It's very strong. The strongest. The FCC in 1934 [through the Communications Act] was given very broad powers to regulate all transmission of information and this uses the broadest, most powerful, deepest authority the agency has. Almost any impartial legal analyst would have to say that this has the greatest chance of surviving in court.
The only challenge for the agency is that it has to explain why it's reversing its 2002 [Cable Modem] order. I don't think it would be that hard. The 2002 order was premised on the idea that when people buy an Internet connection, they also want bundled with it an e-mail address and a Web page. People don't really buy that anymore. When you subscribe to Verizon, people aren't like, "alright, I'm gonna get their e-mail address." People want to use Gmail or something. The conditions have clearly changed, and I don't think it's very hard for the government to say that.
But even if you accept that Title II reclassification has the clearest legal runway, the politics of it have always seemed especially tricky for the FCC.
Oh yeah. The law's not hard. The politics are hard.
So what does Obama's statement do to the politics?
The FCC was leaning toward a slightly more compromised approach, and I suppose having the White House do this could leave them feeling like they have no allies and are unwilling to act for a while. I imagine they're not very happy over there.
Chairman Wheeler's statement on Obama's move actually, seemed, well, pretty sassy. It emphasized how the FCC is an independent agency...
I think the FCC had settled, and may still be settled, on a different way of using Title II. And without the White House on its side and with Congress against it, they're kind of in that middle of the road area where you get run over. Politically, they're stranded right now, and I'm not sure what that means from them. Wheeler seems to be indicating that they're going to push the hold button on net neutrality, which could be a disappointing outcome if that hold button stays there for a very long time.
Their argument seems to be that they haven't developed the record to be able to defend a Title II-based approach in court. But Title II has been around for 80 years.
"We don't have the record yet" is agency-speak for, "we gotta figure out what to do next." They can act without the White House and without Congress, but no one one in Washington likes to go it alone. It's very precarious.
There's been a persistent effort for more than decade to stigmatize Title II, to make it unusable and unmentionable. The fact that the president's talking about it and that the Commission has also been talking about it, at least in hybrid forms, means that Title II is back alive. There's been millions spent to make Title II dead and buried. And there it is. It has risen. It's a live law again. Title II is back.
If you had known how this would all play out, would you have come up with a different thing to call it than "net neutrality"?
I actually proposed more than one phrase for it in my first paper. My other proposition was "broadband discrimination," but that didn't really catch on. There's something about alliteration -- Social Security, net neutrality -- that seem to have a power greater than Congress or the FCC. People always try to do it, though. The call it the new open Internet rules, or the new Internet freedom rules, and people just keep saying "net neutrality."