The FCC's Sneaky Back Door To Net Neutrality

As the Obama Administration enters its twilight years the White House has waved a white flag on pushing its domestic agenda through Congress and is now scrambling to achieve as many priorities as it can through executive action. One 2008 campaign promise that the president has failed to keep has been his pledge to implement net neutrality regulations. However, his Federal Communications Commission (FCC) is now on the verge of using a loophole in an 80-year-old law to ram the regulations through over the objections of Congress, federal courts, and Internet users alike.

President Barack Obama has tried on multiple occasions to shepherd net neutrality legislation--which would in effect give the federal government the power to regulate Internet Service Providers (ISPs) and the speed packages they offer to consumers in the same way local government regulates electric, water, and gas utilities--through Congress. Yet, he’s been defeated by a bipartisan vote each time.

Last year, Obama turned to the FCC to unilaterally enact the policies that Congress refused to pass as legislation. The commission passed a net neutrality order, but a federal court struck down a significant portion of the mandate, leaving most of its regulations toothless. Now, the White House is back for a third try, and is ready to radically twist existing laws to create a backdoor pathway for net neutrality.

The back door to net neutrality is Title II of the Communications Act of 1934, an outdated law written for the purpose of regulating telephone and radio service, which at the time were rapidly-expanding, cutting-edge technologies. Title II governs “common carriers,” which are public utilities subjected to hundreds of pages of federal regulations designed to ensure that they act “in the public interest” by providing the exact same service, at the same rate, to everyone.

These types of regulations make sense for electric, gas, and landline phone service, since there isn’t a way for the utility companies to deliver electricity or gas to your home in a significantly more innovative way than competitors who use the same technology and infrastructure to deliver the same product. But it’s absurd to think that Internet service belongs in this category, particularly as innovations in fiber-optic technology are opening up an entirely new avenue for broadband delivery.

ISP’s aren’t “common carriers” like the phone company--they’re private enterprises competing with one another to offer the newest technology and highest speeds to their customers. The FCC voted in 2002 to properly categorize ISP’s under Title I as “information services,” which are subject to less regulation than Title II common carriers precisely because they promote investment and innovation instead of providing identical service to anyone. This logic still prevails, but the FCC now wants to twist both the law and its own reasoning to redefine the Internet as something it isn’t.

Moreover, the FCC’s regulatory gymnastics are specifically aimed at thwarting the judgment of the federal courts, which deemed most of the commission’s original net neutrality order unconstitutional. Rep. Henry Waxman (D-CA), perhaps the most ardent supporter of net neutrality in Congress, recently sent a letter to the FCC proclaiming that reclassification of ISP’s under Title II would “establish a truly robust framework for [net neutrality] that will withstand judicial scrutiny.” In other words, Waxman and the FCC know that net neutrality violates the constitutional rights of ISP’s and Internet users, but they think they’ve found a way to slip it through on a technicality.

This game of extra-legislative lawmaking mocks the system of checks and balances, but sadly, it’s become the new reality in Washington. When Congress rejects a law, the White House tries to ram it through via executive power. When the courts strike a policy down on constitutional grounds, the Obama administration grasps for any technicality it can find to thwart the rule of law. Regardless of the loophole Title II reclassification may provide, net neutrality remains a bad policy which the American people don’t want and which blatantly violates the rights of ISP’s to offer innovative packages to customers.

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