Late Tuesday, Nancy Scola and I reported on a split between Obama and his top telecom regulator over net neutrality. This post attempts to expand on that with a plain-English analysis — to the best of our understanding — of where things stand at the Federal Communications Commission and how we might expect them to unfold next.
Here's what's going on, in a nutshell: Obama wants FCC Chairman Tom Wheeler to ensure net neutrality — the principle that all Internet traffic is treated equally — by implementing a certain set of rules. Wheeler isn't completely sold on the idea. That's exposed a rift between the two men. The question now is whether that rift will grow larger or smaller in the coming weeks.
To understand why the rift exists, we have to talk about what Obama proposed. In essence, Obama wants the FCC to adopt the most aggressive policy possible to preserve the open Internet. Internet activists (and Democrats) love this, because it allows the FCC to bring the full power of its authority to bear. The proposal is known as "reclassification," whereby the FCC starts to regulate Internet service providers under a part of the communications law known as Title II. With this power, Wheeler can set down rules explicitly prohibiting the blockage of Internet traffic, as well as "unjust" or "unreasonable" discrimination of data that might lead to some Web sites being sped up at the expense of others.
For understandable reasons, telecom companies (and Republicans) hate the idea. They've bashed it as regulation of the Internet and said it will prevent them from making network upgrades and finding new business models. They've also argued that reclassification doesn't achieve Obama's net neutrality goals anyway, because the phrase "unjust" or "unreasonable" technically permits behaviors that ISPs can claim are, in fact, just and reasonable.
Whatever the merits of these arguments, Wheeler appears unready to commit to Obama's plan. For the past few weeks, he's been trying to find a way to give everyone a little bit of what they want. That's great, except it also means everyone can find something about it they don't like, and legal experts are skeptical in any case that a hybrid approach could survive a court challenge by ISPs.
This leaves us with an FCC that's being hemmed in on pretty much all sides, with consumer advocates, tech companies and now the president pressing for one thing and telecom companies and ISPs urging another.
The high-level politics between Obama and the GOP risk obscuring what is actually a very sophisticated technical and legal task for Wheeler. The political winds are pushing him to take Obama's side and go all-in on Title II: Not only would that bring him closer to the leader of his party, it could also make gaining support for a net neutrality rule easier. Wheeler needs three votes to pass any regulations. He likely won't have the support of the two Republican commissioners on the panel, who are opposed on principle to new limits on broadband providers. So he's left with himself, Commissioner Mignon Clyburn, and Commissioner Jessica Rosenworcel.
Wheeler really needs Clyburn and Rosenworcel on his side. They're all Democrats, but it's more complicated than that. If Wheeler bucks Obama and proposes anything short of Title II, Clyburn and Rosenworcel will be in the uncomfortable position of having to vote against the president, too. Chances are they would, as the Democrats might prefer non-ideal rules to no rules at all. But a vote with Wheeler might be easier for his liberal colleagues to swallow if they knew they had the president backing them up.
But here's the thing: Wheeler's a pragmatist. Based on conversations I've had with people close to him, the chairman is chiefly interested in designing rules that — rather than simply appeasing one political interest or another — actually stands the best chance of 1) surviving a lawsuit and 2) achieving the goals he shares with Obama, which is preventing ISPs from slowing or blocking Web traffic.
From where Wheeler sits, Title II may not be the best option for fulfilling those goals, which is why a split, currently, exists between him and Obama. It's possible that Wheeler may move closer to Obama's position in the coming weeks, for the reasons I've outlined. But the FCC is an independent agency that has to follow certain procedures concerning public input, decision-making and rule-drafting. So Wheeler can't simply wake up tomorrow and decide to go all-in on Title II, even if he believed that was the best course — which it doesn't seem like he does (yet?).
So that's where we stand.