The Net Neutrality Bait and Switch
Don’t believe the GOP’s sudden conversion to the open Internet. It’s part of a plan to make things even worse.
The phrase “dead on arrival” is getting a lot of use these days in DC. President Obama’s raft of proposals in his State of the Union address last week? Dead on arrival, according to Republican congressional leaders. The Republican majority’s defiant efforts to pass bills counter to President’s principles, like piling on sanctions against Iran during nuclear negotiations? Dead on arrival, as the chief executive has veto power. Even some bills passed by one Republican-led chamber are deemed DOA as they hit the other body: The House bill overturning the president’s hold on deportation arrived—you guessed it— ”dead on arrival” in the Senate.
That same shorthand applies to a new “Internet openness” draft bill to amend the Communications Act of 1934, introduced by Sen. John Thune (R-SD) and Rep. Fred Upton (R-MI), the new leaders of the Senate and House committees charged with oversight of the Federal Communications Commission. Although calculated to address concerns about online fairness, its real thrust is to remove or constrain the FCC’s authority in a host of areas. The bill will draw a swift presidential veto.
As well it should. The bill is full of problems. It would prevent the FCC from going after any new schemes that position carriers like Comcast or Verizon as gatekeepers online. In cases where carriers are subsidized to provide communications services in hard-to-reach places (like rural areas and tribal land), it would raise barriers to the FCC’s ability to ensure that those carriers actually use those funds to offer high-speed Internet access. It would bar the FCC from using its existing statutory authority to protect consumers against privacy abuses and other exploits — like being billed for unauthorized charges. And rather than allowing the FCC to create clear rules that set the terms of engagement in advance, it would put the burden on consumers and businesses to prove problems through prolonged, expensive, case-by-case wrangling after the fact.
The GOP leadership has to know they’ve lost the PR wars on net neutrality. The bill so transparently shackles the FCC that it doesn’t stand a chance in the open air—and even if it does, of course, the President’s veto pen will be ready.
And that’s why I don’t think this bill is real. What’s actually going on is that the net neutrality issue is being thrown under the bus by the carriers and the GOP in favor of a much more important goal: getting rid of the existing Telecommunications Act entirely.
As long as there’s a sensible statute in place — which there is — Comcast and Verizon and AT&T run the risk of having their high speed Internet access services classified as “telecommunications services” under what President Obama knowledgeably calls “Title II” of the Telecommunications Act. That’s a risk those companies are unwilling to run, because they would have to tell their investors that that some of their future activities might be constrained.
To forestall that possibility, Michael Powell, former chairman of the FCC and now the lead advocate for the cable industry, in October 2013 said Title II reclassification of high speed Internet access services would trigger “World War III.” In other words, from his perspective, such a move would be dead on arrival.
Powell and his brethren have had to scramble in light of the president’s November suggestion that it would be perfectly appropriate for the FCC to re-label high-speed Internet access as a Title II service. Now they’re accelerating the timing of their backup plan: they’re launching everyone into the mosh pit of a wholesale communications act rewrite. The public interest will not do well in this context.
Here’s how this will work out. If the Thune/Walden bill is presented to him, the president will, predictably, veto it. But that won’t be the end. At that point, the GOP leaders of the House and Senate Commerce Committees will call for a bipartisan reworking of the entire telecom statute. This will be hard for Democrats to resist, because the telecom sector is extraordinarily generous with its campaign contributions. According to the nonpartisan Center for Responsive Politics, AT&T, Comcast, and Verizon are among the top ten corporate spenders on lobbying.
Just listen for the signals: For some time, the carriers have been solemnly suggesting that a bipartisan rewrite of the Telecommunications Act is long overdue. Witnesses on their side of the issues at last week’s hearings on the Thune/Walden bill said the same thing. Robert McDowell, former FCC commissioner, now a partner at telco-friendly law firm Wiley, Rein: “Congress should consider a comprehensive update of our communications laws.” Meredith Atwell Baker, another former FCC commissioner, who left the FCC for Comcast following her vote in favor of the Comcast/NBCU merger and is now running CTIA, the wireless industry trade association, said that Congress needs to get the net neutrality issues behind it so that “we all can turn to pressing bipartisan issues like … modernization of the Communications Act.”
That’s the catchphrase: “modernize the communications act.” Rep. Walden’s House Energy and Commerce Committee has been hard at work for months on “modernizing the communications act,” asking questions and soliciting comments. They’ve even got a hashtag: #CommActUpdate. Follow it to see the groups aligned with this cause issuing white papers and decrying the current statutory scheme.
Here’s the thing. We have a perfectly good communications act. The President and the FCC are poised to use it. The carriers just don’t like it. And now they’re going to use the occasion of an Obama veto and a hymn to bipartisanship to press as hard as they can to get an act they do like passed — before there’s a risk of losing GOP control of Congress again. My prediction: Such an act will not require carriers to serve everyone in every community with world-class, reasonably priced Internet access. It will allow a flawed system to get even worse, all to make the rich carriers even richer.
Such an act should be dead on arrival.