The President’s Net Neutrality Proposal Draws Opprobrium, Praise And Threats Of Legal Action

Earlier today, President Obama proposed a net neutrality plan that called for reclassification of broadband under Title II of the Telecommunications Act. The FCC quickly responded, saying, in effect, that it wasn’t quite as simple as the president seemed to intimate, and that it needed more time to work on the matter.

All the while, comments from extra-governmental parties rolled in. The comments come in two varieties: The president is a confused leader who the FCC should not listen to; and the president is brave and excellent for proposing what he did. There isn’t much middle ground in the commentary.

Let’s start with the ISPs, which were quick to draw the statement gun this morning (emphasis mine).


“Verizon supports the open Internet, and we continue to believe that the light-touch regulatory approach in place for the past two decades has been central to the Internet’s success. Reclassification under Title II, which for the first time would apply 1930s-era utility regulation to the Internet, would be a radical reversal of course that would in and of itself threaten great harm to an open Internet, competition and innovation. That course will likely also face strong legal challenges and would likely not stand up in court. Moreover, this approach would be gratuitous. As all major broadband providers and their trade groups have conceded, the FCC already has sufficient authority under Section 706 to adopt rules that address any practices that threaten harm to consumers or competition, including authority to prohibit ‘paid prioritization.’ For effective, enforceable, legally sustainable net neutrality rules, the Commission should look to Section 706.”


Today’s announcement by the White House, if acted upon by the FCC, would be a mistake that will do tremendous harm to the Internet and to U.S. national interests. It is a complete reversal of a bipartisan policy that has been in place since the Clinton Administration—namely, to treat Internet access as an information service subject to light-touch regulation. This classification of Internet service has been upheld by the Supreme Court and has enjoyed strong Congressional support for nearly a generation. Now, with one statement, the White House is telling the FCC to ignore this precedent and to instead impose on the entire Internet—from end to end— onerous government regulation designed in the 1930s for a Bell phone monopoly that no longer exists, not for a 21st century technology. This will have a negative impact not only on investment and innovation, but also on our economy overall.

“For a generation, the Internet has been an American success story. Light-touch regulation has encouraged levels of investment unprecedented by any industry and spawned incredible innovation. Today’s action puts all of that at risk – and puts it at risk not to remedy any specific harm that has occurred. Instead, this action is designed to deal with a hypothetical problem posed by certain political groups whose objective all along has been to bring about government control of the Internet. The White House is proposing to put the Internet and our economy at risk as a result of such political pressures.

“We feel the actions called for by the White House are inconsistent with decades of legal precedent as well as Congressional intent. Moreover, if the government were going to make such a momentous decision as regulating the entire Internet like a public utility, that decision is more properly made by the Congress and not by unelected regulators without any public record to support the change in regulation. If the FCC puts such rules in place, we would expect to participate in a legal challenge to such action.”


“Comcast fully embraces the open Internet principles that the President and the Chairman of the FCC have espoused — transparency, no blocking, non-discrimination rules, and no “fast lanes”, which is the way we operate our network today. We continue to believe, however, that section 706 provides more than ample authority to impose those rules, as the DC Circuit made clear.”

Comcast and cable companies (along with the telcos) have led the broadband revolution, being the first to roll out America’s fastest broadband speeds across the country. As the White House itself acknowledged in its broadband report in 2013, this only happened because we were not subject to the intrusive regulatory regime designed for a different era.

To attempt to impose a full-blown Title II regime now, when the classification of cable broadband has always been as an information service, would reverse nearly a decade of precedent, including findings by the Supreme Court that this classification was proper. This would be a radical reversal that would harm investment and innovation, as today’s immediate stock market reaction demonstrates. And such a radical reversal of consistent contrary precedent should be taken up by the Congress.

The internet has not just appeared by accident or gift — it has been built by companies like ours investing and building networks and infrastructure. The policy the White House is encouraging would jeopardize this engine for job creation and investment as well as the innovation cycle that the Internet has generated.”

That’s nice and uniform: a combination of hell no, hell no and we’ll sue you if you do this.

Here’s a headline from TechFreedom, a self-described “non-profit, non-partisan technology policy think tank”:

“Obama Cynically Exploits Confusion over Title II, Misses Opportunity to Lead on Legislative Deal”

Well, then.

A trio of Republican lawmakers are gosh-darned gobsmacked by the situation. From the mouths of Energy and Commerce Committee Chairman Fred Upton, Communications and Technology Subcommittee Chairman Greg Walden and Vice Chairman Bob Latta: “We are extremely troubled and disappointed by the president’s urging the FCC to regulate the Internet as a utility under Title II of the Communications Act. Today’s announcement is just the latest in a long line of decisions that reveal this administration simply doesn’t know how to grow the economy.”

But I thought the government didn’t create jobs.

On the other side of the ideological spectrum, we have the people that are cheering the president, and not threatening to sue the government. First up, the ACLU:

“Today, President Obama is a free speech champion. He deserves an enormous amount of credit for unequivocally calling on the FCC to adopt rules that will finally allow the agency to protect the free and open internet. Preventing ‘fast lanes’ and discrimination against some content producers on the internet is one of the most important free speech issues of the digital age. Large broadband providers should not be allowed to slow or block content from their competitors or because the content may be controversial.”

And here is the Internet Association:

“The Internet Association applauds President Obama’s proposal for the adoption of meaningful net neutrality rules that apply to both mobile and fixed broadband. As we have previously said, the FCC must adopt strong, legally sustainable rules that prevent paid prioritization and protect an open Internet for users. Using Title II authority, along with the right set of enforceable rules, the President’s plan would establish the strong net neutrality protections Internet users require. We welcome the President’s leadership, and encourage the FCC to stand with the Internet’s vast community of users and move quickly to adopt strong net neutrality protections that ensure a free and open Internet.”

And, finally, Netflix:

That’s the lay of the land, and it isn’t a surprising landscape. What matters now is whether the president’s comments will have any material impact on the thinking of FCC Chairman Tom Wheeler and any of the other FCC commissioners. If not, all we’ve managed to do today is spin our wheels.