President Obama said Monday morning that he wants strong net neutrality rules that would include regulating Internet service providers more heavily under Title II of the Communications Act. But even with that presidential intervention, don't expect this debate to be resolved any time soon.
Why? In a word, litigation.
FCC Chairman Tom Wheeler has said in the past that he wanted to finish new rules for net neutrality -- the principle that all Internet traffic should be treated equally -- by the end of the year. But that has become increasingly unlikely as the agency moves toward proposals to use parts of Title II of the Communications Act to regulate Internet service providers. That would give the agency more power, but is likely to face a tough fight from key industry players like Verizon, which has made it clear in recent days that it intends to sue the federal government over any application of Title II. (It was Verizon's suit over the FCC's 2010 rules on broadband, remember, that triggered this latest round of FCC rulemaking.)
"We want to get it done, " said a senior FCC official this weekend, "but we want to get it done right."
The problem, as litigators in the FCC see it, is that proposals that use a bit of Title II, but not all, to regulate the industry are, as one senior FCC official puts it, legally "novel." It's also a shift for Wheeler, who initially floated a light regulatory approach based on the idea that there was enough competition to keep ISPs from restricting Web traffic unfairly. But Wheeler now appears to be concerned that without stronger regulation ISPs will unfairly block some Web sites, degrade the quality of the traffic or allow some content providers to pay to guarantee good access to consumers.
Both Wheeler and Obama look prepared to take on a lawsuit from Verizon and perhaps others. But the FCC is worried that by shifting somewhat late in the game to a Title II-based approach, the commission hasn't developed the public record necessary to defend the decision on procedural grounds, something that has tripped up the agency before.
"We're going to get sued," says a senior FCC official. "But we want to be on firm legal footing. The litigators in the agency want to be sure to do everything to minimize the legal risk." Perhaps Verizon is all talk? Says the official, "We're taking them at their word."
Here, though, is where things get more interesting. There have been hints that the FCC is considering a proposal from tech company Mozilla, which called for regulating ISPs relationship with content providers like Netflix, Dropbox and Etsy. The agency is also said to be considering a proposal by the Center for Democracy and Technology to establish a minimum quality of Internet traffic but allow consumers to pay to get advanced Web services like online medical services.
Obama, meanwhile, is closer to a proposal suggested by Rep. Henry Waxman (Calif.), the ranking Democrat on the House Energy and Commerce Committee. Waxman has called for the FCC to put all of broadband under Title II and then hold off -- the technical term is "forbear" -- from applying some of the stricter regulations that the telecom companies object to. Obama, though, would go further, applying nearly all of Title II and far more lightly forbearing from certain portions of the law, such as rate regulation.
And, importantly, where the FCC has been unsettled on the question of whether to extend Title II to mobile broadband -- that is, the high-speed Internet accessed through cell phones or tablets -- Obama explicitly said that "the FCC should make these rules fully applicable to mobile broadband as well."
Whichever proposal that the FCC decides to go ahead with, though, there is a sense within the agency that the public record -- despite the record-breaking, 3.7 million comments that have flooded in already -- isn't strong enough to stand up against an inevitable lawsuit. That means that we might be looking at another round of public comments and even roundtables so that the FCC can prove to a judge that it fully considered all the legal implications of its move.
Unless, with the presidential wind at their back, FCC officials decide to very quickly forge ahead with a proposal that mimics the Obama plan. The next monthly meeting that would enable a vote is Dec. 11. Commission rules require the chairman to circulate a copy of his proposal for three weeks before a vote. That means that Wheeler would have to finish his proposal within the next 10 days in order to pass any rules in what's left of 2014.
One detail, however, has been resolved. Whenever the rules are said and done, the Republican Congress will no doubt try to override any Title II regulations with a Resolution to Disapproval. Obama can veto that, though. And, based on his comments Monday, it looks like he'd relish the chance.
Update: Chairman Wheeler just issued a statement confirming that while, "The President’s statement is an important and welcome addition to the record of the Open Internet proceeding...the more deeply we examined the issues around the various legal options, the more it has become plain that there is more work to do."