Congress offers exit strategy on net neutrality

Back in February 2014, when FCC Chairman Tom Wheeler announced that he intended to issue a Notice of Proposed Rulemaking to write new net neutrality rules in the wake of the DC Circuit’s decision in Verizon v. FCC, the American Enterprise Institute’s Richard Bennett responded by warning that net neutrality could become “Wheeler’s Vietnam.”   Honestly, I thought then that the Vietnam analogy might be an overreach.  Relying on Wheeler’s public statements at the time, I wrote then that “while net neutrality advocates are chomping at the bit… they may not get their way.”

But time has proven Richard correct.  The net neutrality issue has become every bit the quagmire he predicted, a political circus that threatens not only to do real harm to the Internet but also to destroy whatever credibility remains in the notion that expert independent agencies can be insulated from crass political influence.  Like President Johnson,  Wheeler’s best intentions have been overwhelmed by forces beyond his control.  Net neutrality has indeed become “Wheeler’s Vietnam.”

{mosads}Yesterday, Congress offered him an exit strategy.  The chairmen of the Senate and House commerce committees, Sen. John Thune (R-S.D.) and Rep. Fred Upton (R-Mich.), announced that they will soon introduce legislation to clarify the Commission’s net neutrality authority and establish “unambiguous rules of the road that protect Internet users and can help spur job creation and economic growth.”  The two chairs invited Wheeler to work with them to craft the bill.  He ought to take them up on the offer.

How did we get where we are today?  A year ago, when the current chapter of the net neutrality saga began, I was persuaded by the chairman’s assurances that he intended to move ahead with a consumer welfare focused approach designed to identify and prevent specific instances of harmful conduct, while avoiding onerous, one-size-fits all regulations.  On January 14, 2014, in a blog reacting to the DC Circuit’s decision, he wrote the following:

My strong preference is to [police net neutrality] in a common law fashion, taking account of and learning from the particular facts that have given rise to concern. The preference is based on a desire to avoid both Type I (false positives) and Type II (false negatives) errors. It is important not to prohibit or inhibit conduct that is efficiency producing and competition enhancing. It also is important not to permit conduct that reduces efficiency, competition, and utility, including the values that go beyond the material.

The principles provide sufficient guidance to set expectations for both producers and consumers. If something appears to go wrong in a material, not a trivial, way, the FCC will be available to use the totality of its authority for adjudication and enforcement. It will look to the Open Internet Order principles and it will examine the facts in light of the principles.

When the NRPM was released in May, it appeared to follow through on this commitment to a light-touch approach – despite the protesters outside the Commission offices and hecklers inside the commission room itself.   Even as left-wing interest groups ramped up their lobbying, subsequent statements, including a thoughtful June 23 speech by FCC General Counsel Jonathan Sallet, suggested that the “light touch” approach was still on track.  Privately, I was told by a number of knowledgeable sources that the White House political team was “under control,” and that intervention on that front wasn’t a concern.

A lot of water has passed over the dam since then.  First, net neutrality activists managed to turn what should be a dispassionate, fact-based rulemaking process into a de facto plebiscite – an exercise in mob rule in which the outcome is determined (or at least affected) by which  party proves capable of generating the most click-through electronic “votes” on the FCC’s “electronic comment filing system.”  That is the very antithesis of how independent agencies were intended to work, and it is to no one’s credit that it has been given credence – even encouraged – by top level FCC officials.

Next came Netflix and the battle over Internet interconnection.  In his January blog, Wheeler assured readers that he was not “interested in presiding over a festival of rent seeking.”  And yet that is precisely what the Netflix battle was all about – crony capitalism in which some companies (Netflix) demand free stuff from other companies (ISPs), ultimately at consumers’ expense.  And while the FCC initially said it would stay out of this fight, it has since opened an investigation to “collect information,” and Netflix is still pushing the issue.

The final straw came in November with President Obama’s unprecedented, inappropriate intervention, in the form of a YouTube video released when the president was, of all places, in China.  As I said then, the political nature of the White House’s intervention made “a mockery of any sense of independence or impartiality.”  Wheeler reacted the only way he could, by asserting (against all appearances) that the FCC remains an independent agency (“I am an independent agency” was the exact quote), and kicking the decision down the road a couple of months in order to create an impression of separation.

But the pressure has proven too great, and last week in Las Vegas the chairman appeared to capitulate, signalling that he will, indeed, propose a rule that would declare the Internet to be a “Title II service” – a public utility. 

I still think Chairman Wheeler started this process with the best of intentions, and that he believed – as I also mistakenly believed – that he could guide it to a sensible outcome.  But the politics of the thing have proven too strong, and the result – if the three Democratic Commissioners indeed carry through on a party-line vote, as planned, at the FCC’s February 26 meeting – will be to prolong and escalate a battle that is neither wise nor necessary. 

Thune and Upton have offered an alternative course – a path towards a sensible policy backed by statutory certainty, a path out of the net neutrality quagmire rather than deeper into it.  In the heavily polarized environment that is today’s Washington, it would be a remarkable act of leadership for Wheeler to join them in seeking a bi-partisan, consensus solution.

Eisenach is the director of AEI’s Center for Internet, Communications, and Technology Policy and the editor of TechPolicyDaily.com. The views expressed are his own.