I keep saying that telecom policy is blood and guts stuff — giant principles of equity, speech, and the importance of free markets run headlong into the extraordinary political powers wielded by Comcast, Verizon, Time Warner Cable, and AT&T. All too often the drama is buried in an avalanche of acronyms and incremental influence. Then came yesterday’s message from President Obama. Here was our best Obama, telling the FCC in plain language that it should consider acting like a regulator. The message actually brought a tear to my eye. It’s the equivalent of the moving part of the war movie when the gruff but effective leader calls his troops to their better selves, reminding them why they’re there in the first place.
So although the president sounded like the law-professor-in-chief yesterday (“I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act”), to me it was a General Patton moment. This is a battle cry designed to give heart to his administration — and particularly the corner of the executive branch crouching in terror behind the walls of the FCC.
The president is reminding us that we are a country that does great things.
It’s a big deal; it’s like the leadership that FDR wielded when he took on the giant private electrical companies that were controlling electrification — perfectly legally, at the time, but with terrible consequences for the nation — in the 1930s. The fight over whether high speed Internet access should have a cop on the beat is our version of the battle over electricity that dominated presidential politics nearly a century ago. Left to their own devices, the electrical trusts were systematically gouging richer Americans, leaving out poor and rural markets, and extracting profits wherever possible. There is nothing malign about this behavior — it is the natural tendency of profit-seeking companies to act this way when it comes to high-fixed cost physical infrastructure — but the incentives of the companies involved are not necessarily aligned with the country’s interest in competing and flourishing on the world stage. We are recapitulating the early story of electrification when it comes to high-speed Internet access. It has to stop.
And finally our president is saying: stop it. His message goes beyond the narrow context of net neutrality, although it comes out of that Twister-like legal story. What he’s saying is that the FCC should use the perfectly good statute Congress passed in 1996 when it is adopting rules about high speed Internet access, rather than trying to build a house of cards based on a patchwork of authority. A risk-averse FCC has tried this — twice — and both times the DC Circuit told the agency that it can’t deregulate with one hand (by removing the “Title II” label from high-speed Internet access) while regulating with the other (by adopting “Open Internet” rules).
When it comes to operating on sound legal grounds, “once more with feeling” is not going to work for the FCC, either in the net neutrality context or in any other realm having to do with high-speed Internet access. The president’s line in the sand is infuriating to Comcast, Verizon, Time Warner Cable, and AT&T but is good news for every other American business and user of the Internet — in other words, everyone else in the country.
Only a naïf would think that the odds look good: it’s virtually every citizen and small business in America along with almost all of Silicon Valley’s top companies, versus a handful of big carriers.
In fact, the political odds are daunting. The giant incumbents are unleashing their hounds, and the barking and baying will go on for months. They’re climbing all over Capitol Hill, lining up votes to gut the budget of the FCC. They’ll sue. (They always sue.) They’ll hire every expert in DC to support their claim that they’re fierce competitors, that competition is protecting Americans from any pricing or discriminatory abuses, and that we already live in the best of all possible worlds when it comes to high speed Internet access. They’ll claim that Obama is a “radical”. (The same thing happened in the electrification era.) Entertainingly, Sen. Ted Cruz says this is “Obamacare for the Internet,” which makes no sense at all — this is not “regulating the Internet,” it’s making sure Internet access is overseen in the public interest — and a blizzard of other bumper sticker slogans will be deployed to fog Americans’ understanding of what is actually happening. This is a titanic battle from the incumbents’ perspective, and they have an arsenal on their side.
Meanwhile, the president is giving political air cover to the FCC to do the right thing — to be brave rather than to try to placate the incumbents (who will sue anyway) by employing a too-clever-by-half legal scheme aimed at avoiding clear use of Title II.
He’s also saying that Internet access providers shouldn’t be allowed to squeeze connections between their and other networks. This is an issue I explored in depth last week here on Backchannel. We now know that Comcast, Verizon, AT&T, and Time Warner Cable are collectively refusing to widen the doors through which packets need to travel in order to reach these companies’ subscribers — unless they are paid. In a competitive marketplace for high-speed Internet access this would never happen.
In response, FCC Chairman Tom Wheeler is circumspect, suggesting yesterday that the whole thing will take time.
It’s strange: telecom policy from the perspective of the leaders at the FCC is still inside baseball, something worked out over a single conference room table among the handful of actors who matter. But the president recognizes that millions of Americans are up in arms about high speed Internet access, and getting this issue right will shape his and his administration’s legacy — just as the battle over electrification shaped FDR’s.
The president and his administration came to Washington to do big things. Now this battle has been joined. It is a fight we need to win — for our pocketbooks, for our connectivity, and for our freedom. Americans at their best are never cynical. And, finally, on this issue our leader is standing up for us.