The widespread national popularity of net neutrality principles have pushed the new Republican Congress, however tentatively, to embrace some of its core concepts. With two congressional net neutrality hearings scheduled for today, Republican lawmakers have released draft legislation that would ban broadband providers from discriminating against certain kinds of web traffic. But even as the draft bill appears to enforce fundamental tenets of net neutrality, it explicitly undermines the legal authority of the FCC. And advocates say that if passed, the bill could create new obstacles to an open internet.
First, the good news: The proposed law would prohibit data throttling, blocking, and internet fast lanes. It would also require providers to share with consumers information about the performance of their internet service. But the Republicans behind the proposal, Senator John Thune (R-SD) and Representative Fred Upton (R-MI), argue that broadband providers should not be reclassified under Title II of the Communications Act, a move that would allow the FCC to regulate ISPs more like public utilities. (This reclassification was recently endorsed by President Obama.) Instead, congressional Republicans believe that broadband should remain an "information service," a designation that affords less oversight. (The Republicans’ rationale: government interference would hamstring investment and innovation.) The bill also prevents the FCC from relying on a crucial piece of telecommunication law that would allow the agency to regulate broadband providers in the future.
Republicans believe that broadband should remain an "information service," a designation that affords less oversight
A critical reading of the bill finds the Republicans eager to pay lip service to net neutrality while stripping the open internet of key protections. A law that relegates the telecom's chief regulatory watchdog into a large stack of three-ring binders isn’t exactly an advocate’s dream. The bill gestures towards addressing the loudest demands surrounding net neutrality. But its rules would also leave the FCC largely inert. And a skeptical interpreter reads the proposal and sees the handwriting of telecom industry lobbyists: it may not be drafted by the colossal internet companies it’s meant to regulate, but all the power squeezed from regulatory ambiguities is channeled in their direction. When Republicans describe this bill as true net neutrality, it might be suitable to tell them: You keep using that word. I don’t think it means what you think it means.
I don’t think it means what you think it means
On February 26th, the five commissioners of the FCC plan to vote on their own net neutrality proposal. Their decision would dictate the rules of the road should Congress fail to pass a law beforehand. Thune and Upton’s legislative push can be seen as a way to subvert the FCC’s vote, wresting control of the issue away from the federal agency and into the hands of the newly Republican-controlled Congress. While many obstacles stand in the way of the bill becoming law — the president’s likely veto chief among them — the proposal nonetheless represents a turning point in the debate.
Simply put, the popularity of net neutrality poses a problem for Republicans. While the GOP maintains a general opposition to government rules in economic life, the principle of treating all web traffic equally enjoys wide, cross-partisan support. As it has become clearer that only new regulation can ensure net neutrality, Republicans risk not only appearing as obstructionists, but worse, obstructionists that side with the likes of Comcast. And so, elements of the draft bill contain concessions that, at least on the surface, should please net neutrality advocates. If nothing else, the language suggests that Republicans want to be seen as earnest stakeholders.
The popularity of net neutrality poses a problem for Republicans
"This bill signals what we’ve been saying for a while," Corynne McSherry, intellectual property director at the Electronic Frontier Foundation, told me over email. "The tide has turned on net neutrality, and the folks in DC are realizing that it’s time to take meaningful and legally sustainable steps to protect the open internet."
Matt Wood, Policy Director at Free Press, expressed a similar sentiment. "The conversation has shifted," Wood said. "Republicans making statements like this is not something we are used to over the last few years, and that is a shame, because this is not a partisan issue. I think there is a real shift in tone and we have to account for that, even celebrate it."
But both McSherry and Wood, after remarking on the novelty of GOP-backed net neutrality, expressed skepticism about its likely effects. "The reason this bill is dangerous," Wood said, "is that it tries to take some of the president’s principles and restate them and put them in the bill. And the problem with that is by banning only a few kinds of harmful discrimination, what it is essentially doing is legalizing every other kind of discrimination."
"The conversation has shifted."
Wood told me that while the rules in the bill offer some protections, they fail to provide the FCC with flexibility and foresight to account for unfolding developments on the internet. "In addition to listing out the things that are prohibited, it says the FCC has no rule-making authority; it has no ability to expand these obligations," he said. "It’s basically trying to say: ‘Here are some protections, FCC, but you are now handcuffed and unable to adapt or adjust to the facts or circumstances of future practices.’"
Thankfully, the political language from all sides around net neutrality has shifted toward consumer protection and fairness in competition. But we should question the motivations behind the Republicans’ proposal, in which net neutrality’s latest converts present themselves as sincere allies. Is the draft bill a cynical effort to frustrate and stall the FCC, or is it closer to a real change in Republican policy thinking?
Republicans don’t really want net neutrality. They just want to look like they do
In a statement on the proposed legislation, Thune said: "By turning the FCC away from a heavy-handed and messy approach to regulating the Internet, this draft protects both consumers who rely on Internet services and innovators who create jobs."
Even if the bill represents an earnest compromise, it still doesn't come close to what internet activists and Democrats are asking for. By avoiding a reclassification of broadband and working to render the FCC impotent, the new Republican Congress suggests it doesn’t really want net neutrality. It just wants to look like it does.