This winter, the Federal Communications Commission is expected to pass its much-anticipated rules telling Internet service providers what, exactly, it means to treat everything that moves across the Internet fairly.
If those "net neutrality" rules go as far as President Obama has called for them to go -- more or less, treating broadband Internet less like any other consumer product and more like a core part of the United States' public infrastructure -- Internet service providers are likely to take them to court. And so, many savvy observers of the net neutrality debate will tell you to keep a close eye on the judicial branch next.
But here's where your other eye should be firmly focused: over on Congress. Capitol Hill has largely been ignored in the public debate over net neutrality. The reality, though, is that House and Senate Republican opponents of net neutrality have the ability to make life very difficult for Obama and FCC Chairman Tom Wheeler on the net neutrality front. Here's how.
1) Get rid of the FCC's rules entirely. As part of the Newt Gingrich-led revolution of the 1990s, Congress passed a law aimed at limiting an American president's abilities to decide how the country should run simply through rules made by his or her agencies. Called the Congressional Review Act, that obscure tool gives Congress the power to vaporize an agency's rules from the books. Such "resolutions of disapproval" are rarely used, but one place where Republicans have used it before is to target net neutrality. Back in 2011, nearly all House Republicans voted to erase the FCC's last set of open Internet rules. Though the resolution passed the House, it failed in the Democrat-controlled Congress.
But one of the unintended consequences of the FCC missing Chairman Wheeler's timeline for wrapping up things in 2014 is that the commission's rules will find themselves having to survive not only a Republican House but a newly Republican Senate, too. Under the Congressional Review Act, Congress has 60 days to object to a new set of rules. If the commission finishes up its work "quickly," as he has said is the plan, the FCC just might run out that clock while Republicans are still stuck in the messy getting-organized period that happens at the beginning of any new congress.
And in the end, Obama is all but guaranteed to veto a resolution of disapproval, given that he's loudly called for "the strongest possible rules to protect net neutrality." But Republicans might judge that it is worth trading an ultimate legislative defeat for a symbolic, short-term victory.
2) Swamp the FCC in investigations. Congress could make life miserable for Wheeler and other high-ranking FCC officials, not simply with formal congressional hearings but open-ended and endless investigations. In particular, Republicans are likely to dig into the process the commission used for writing its rules, including whether it handled diligently and competently the more than four million public comments that poured into the agency.
Keep in mind that Wheeler is a proud man with a fair amount of swagger -- exactly the sort of person who tends to hate being grilled by every junior congressperson able to find himself or herself an open microphone. That sort of badgering has brought low other professionally accomplished people. Kathleen Sebelius was once a highly regarded former governor of Kansas. When Republicans in Congress were done putting her through the thrasher for her role in health care reform, she found herself cast as the incompetent personally responsible for messing up the HTML code on HealthCare.gov.
Perhaps more importantly, there's a possibility that Capitol Hill theatrics could end up ultimately affecting whether the FCC's net neutrality rules are found to be legally binding. In principle, of course, federal judges pay no mind to public opinion or partisan politics. In practice, the rules getting bruised and battered in Congress could affect, even if subtly, how the court thinks about whether they're worth preserving.
3) Cut off the money supply. Congress has the option of saying the commission can't use any of its budget to put net neutrality in place with a bill that would likely begin, "None of the funds made available by this Act may be used..." Obama could veto that sort of defunding if it is passed as a stand-alone piece of legislation. But if Republicans can slip such a provision into a bigger, hugely important bill -- say, a Defense Department spending measure -- it might be harder for the president to fight off the cut.
And another likely worry in the halls of the FCC is that Republicans also could pass lower-profile but still punishing funding reductions for projects like E-Rate, the FCC's funding program for technology in schools and libraries that is in the midst of a major overall, or the Lifeline program that subsidizes phone service for lower-income Americans. Those are priorities for Wheeler, too, and Republicans are likely to face little public push back for going after their funding streams.
4) Write their own law. Instead of simply rejecting the FCC's rules, Republicans could write legislation saying how they want broadband Internet to be treated. Here, we have no choice to get into the weeds. Republicans could propose a law that would ensure the goals that both Obama and Wheeler say they want -- "no blocking, no throttling, and no fast lanes" -- but, importantly, under a less restrictive section of the law than the Title II section of telecommunications law that Internet service providers oppose. Verizon, whose lawsuit against the FCC started this whole debate, has suggested they'd now be okay with that approach. A compromise bill might even pick up the support of a few Democrats, including those eager to avoid having net neutrality tied up in court again.
"What do we want? Title II!," has become a rallying cry for hard-core net neutrality advocates. But if there's a bill that seems to enshrine net neutrality into law and perhaps settle the debate once and for all, Obama might be hard pressed to oppose it just because it uses a different, slightly less powerful part of federal law to get the job done.
All of the above rests on the question of how Republicans opt to position themselves on the net neutrality question from here on out, and Republicans aren't eager to air their thinking quite yet. The Internet, though, is enormously popular in American life, and Republicans likely won't do themselves any political favors by being seen somehow as its opponents, especially among the young voters they covet.
Net neutrality watchers have studied for clues the cancellation of a hearing on the topic in the House that was scheduled for mid-December. Was it a sign of a growing savviness among House Republicans, who are simply waiting until they have a formal set of rules from the FCC to dig their teeth into? Or was it a signal that they're growing increasingly reluctant to end up like Sen. Ted Cruz, the Texas Republican who was savaged online even by members of his own party for calling the president's plan for net neutrality "Obamacare for the Internet"?
So, as 2014 wraps up, we have the FCC searching for a final set of rules on net neutrality and Capitol Hill Republicans searching for where, in the end, they'll stand on the matter. The results of those two searches will come face to face in 2015, and the future of the Internet in the United States could depend upon what happens when they do.