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What can Obama really do for net neutrality?

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He can help set the agenda, but the FCC and Congress are making the call

White House / Flickr

Net neutrality might be the most contentious problem the Federal Communications Commission has faced in recent history. The past year has been marked by a landmark legal case that struck down the 2010 Open Internet rules, and a series of polarizing proposals for new ones. Protestors have driven a record number of comments to the FCC; this morning, a group blocked off Chairman Tom Wheeler's driveway to decry the latest series of rules. And now, President Barack Obama has urged the FCC to take a stand and treat broadband more like a utility than a web portal.

Obama's loose four-point proposal is a boon to most net neutrality supporters: he's asking for broadband to be classified as a Title II common carrier, putting it in the same category as telephone service. Not only would the plan revive bans on ISPs blocking content, it would also prevent them from slowing down some services or speeding up others — the so-called "fast lanes" that have become a primary point of contention in this debate. It would extend net neutrality protections, in some cases, to the backbone connections between services like Netflix and ISPs, not just ISPs and consumers. It even asks for the rules to apply to mobile broadband as much as possible, a major shift away from the laissez-faire policies in the 2010 Open Internet Order. To forestall critics, it allows for what's known as "forbearance," a process in which the FCC chooses not to enforce certain parts of Title II.

But as Obama himself admits, this isn't his call to make. The FCC is currently drafting its net neutrality proposals, and he has no control over how its five commissioners ultimately vote. After taking both houses of Congress in the midterm elections, Republicans are poised to overrule the FCC and ban net neutrality regulation. In this climate, what can a speech from the President actually do?

"Obamacare for the internet"

Obama has always said he's in favor of net neutrality, but he notably waited until after the midterm elections to make his support for Title II reclassification known. He's entering the lame-duck period of his presidency, where political fallout is more limited — although he's going to face harsh criticism from telecommunications companies and conservatives. Senator Ted Cruz (R-TX) has already called the proposal "Obamacare for the internet," and Verizon said it would be "a radical reversal of course." But he's throwing weight behind the position of Democrats like House Democratic Leader Nancy Pelosi (D-CA), who called for Title II reclassification in September, and standing up in opposition to Republicans like Cruz and Rep. Bob Latta (R-OH), one of several members of Congress who's tried to stop net neutrality before.

"It's fair to see this as a preemptive strike in the coming legislative battle," says Geoffrey Manne, executive director of the International Center for Law and Economics. "There's already significant interest on the Hill in passing legislation to rein in the FCC on net neutrality, whether as part of a Communications Act rewrite or a standalone bill. The White House statement certainly makes it harder to get Democratic votes behind such an effort, and signals very clearly (although this was probably already obvious) that the White House would veto a bill that takes Title II off the table."

For Berin Szoka, president of anti-reclassification advocacy group TechFreedom, this is a major mistake. "Obama's statement is simply a cynical political ploy, a way of playing to activists on the radical Left who have built mailing lists and a political movement on the most absolutist conception of net neutrality," he says. The debate over how to apply rules under Title II "will only be politicized even further by Obama's inflammatory rhetoric." As such, it could make reaching a Congressional agreement on net neutrality and FCC reform — both of which have been a topic of debate for years — harder.

"The ball's in their court in a way it hasn't been before."

Tim Karr, strategy director of the pro-net neutrality group Free Press, thinks this might be inevitable. "Unfortunately, it seems like anything Obama says tends to create a level of polarization," he says. Republicans are currently planning a multi-year overhaul of the FCC's rule-making powers, with the goal of getting Obama to sign a bill before leaving office. At the helm is Senator John Thune (R-SD), who promotes a "light regulatory touch" that emphatically excludes strengthening net neutrality rules. Thune has issued a statement condemning Obama's "stale thinking," which he says would create legal and economic problems and extend "what has needlessly become a politically corrosive policy debate."

For now, Congress is less important than the FCC, and Karr thinks Obama's statement is a limited but much-needed nudge. The statement "puts the onus squarely on the head of Chairman Wheeler and the two Democratic commissioners," he says. "The debate has shifted now, I think, to not whether the FCC uses Title II or not, but how the FCC uses Title II." Tim Wu, known for coining net neutrality as a term, says that "the ball's in their court in a way it hasn't been before. ... He's the boss; he's the head of the Democratic Party and the President of the United States. His ideas hold a lot of weight." Fight for the Future (and signatories of multiple online petitions) asked Obama to fire Tom Wheeler if he doesn't support reclassification, but that's a far less likely prospect — removing an FCC head for making a disagreeable policy call would set a terrible political precedent, and it probably wouldn't get critics a fiercer replacement.

The FCC confirmed that it's looking at unpopular "hybrid" plans

As it stands, the FCC's response has been fairly noncommittal. "As an independent regulatory agency we will incorporate the President's submission into the record of the Open Internet proceeding," it said. It even used its statement to confirm that it's been looking at unpopular "hybrid" plans, which only apply Title II rules to certain parts of the web. It's unclear whether we'll see a net neutrality rule in place by the end of this year, and the statement emphasized how complicated the process is going to be.

If the FCC votes to accept Obama's plan, commissioners will still have to create a real policy. What parts of Title II, like price regulations, shouldn't apply to broadband internet? How should the rules for wireless and wired internet differ? Jon Peha, a Carnegie Mellon University professor and former assistant director of the White House Office of Science and Technology Policy, says it's the details that will determine whether the proposal is "useful or dangerous." Among other things, he says, the FCC will need to make sure it's tailored rules to allow very specific kinds of useful discrimination without compromising the larger framework. "We don't want to prohibit carriers from blocking viruses, for example."

No matter what they come up with, there's a long road ahead. Any version of net neutrality is probably going to draw lawsuits from companies like Verizon, which successfully managed to overturn the 2010 rules almost a year ago. If Title II is in the mix, opposition will be even stronger. Regardless of how much or little Obama can directly control, though, he's instantly raised the public profile of net neutrality. And he's come out in favor of the most dramatic policy change on the table... or, at least, the skeleton of one. It's up to the FCC to flesh it out.