Everyone is focused on the wrong issue in the net neutrality debate

On Monday, President Obama unveiled a plan for strong network neutrality regulations. Before long, Senate Republican leader Mitch McConnell (R-KY) and House Speaker John Boehner (R-OH) had both denounced the president's proposal.

Yet the views of these elected officials will be almost irrelevant to determining how the internet is regulated in the next few years. Instead, the future of network neutrality rests in the hands of Federal Communications Commission chairman Tom Wheeler.

But Wheeler has to work within the framework of an outdated statute that hasn't been updated in 18 years. He can probably make modern regulations fit into a 1990s framework, but it requires a lot of unnecessary legwork and will produce a less-durable, less functional outcome than we'd get if congress would do its job and change laws to fit changing circumstances. Indeed, debate over this legal maneuvering — known as "reclassification" — has totally overshadowed substantive questions about what network neutrality rules should look like.

In an ideal world, our elected representatives in Congress would update telecommunications law to take account of 20 years of rapid technological change. But the legislative process has become so polarized and dysfunctional that there's very little chance of this actually happening.

Reclassification: a square peg in a round hole

Wheeler is trying to shoehorn modern net neutrality rules into an 18-year-old legal framework. (Lad&LassieShoeHorn)

Right now, the debate over network neutrality isn't actually focused on net neutrality. It's focused on "reclassification," a legal tactic that many believe is a prerequisite to strong net neutrality rules.

Reclassification refers to a pair of legal categories Congress established back in 1996. Essentially, one is a low-regulation category (intended for innovative services like Facebook and YouTube) while the other is a high-regulation category (intended for your local phone company). For the last decade, the FCC has put broadband services in the low-regulation bucket, and the courts have said that means strong net neutrality rules aren't allowed. But the FCC could change its mind and put broadband in the high-regulation category instead.

Yet even many liberal activists concede that this high-regulation category involves too many burdensome regulations. There's broad agreement that these requirements — including "rules about obscene phone calls, rate schedules, telephone operator services, and carrier reporting requirements" — are a poor fit for modern broadband services. True, the FCC may be able to nullify the most burdensome regulations, but it's still going to be a hassle for everyone involved.

If one category gives the FCC too little authority and the other imposes too much regulation, the obvious solution is to create a new category that's tailor-made for broadband services. But there's essentially no chance of this happening. Republicans are opposed to the very idea of network neutrality regulations, while President Obama would likely veto any bill that stripped the FCC of authority to protect net neutrality.

In previous decades, this kind of standoff would be settled by negotiation: Republican leaders in Congress would meet with the president and hammer out a compromise. But since Republicans took the House in 2010, we've seen that it's extremely difficult for Speaker John Boehner (R-OH) to corral his caucus into supporting compromise legislation on almost any subject.

The fight over reclassification is a huge distraction

FCC Chairman Tom Wheeler. (JIM WATSON/AFP/Getty Images)

The larger problem with the reclassification fight is that it's distracting everyone from the substance of network neutrality rules. Translating the abstract principle of a neutral internet into concrete legal rules won't be easy. A good rule needs to give network owners enough flexibility to combat spam and viruses, cope with traffic surges, and intelligently allocate resources where it's needed most — without giving them so much flexibility that the rule becomes toothless.

It's also important to carefully define who is and is not subject to the rule. For example, we should probably let a coffee shop offering free wifi block pornographic content. Regulators may also want to give wireless carriers — who face both tighter bandwidth constraints and more competition — more flexibility than residential broadband providers. And it's important that the rule not be unduly burdensome to startups.

Finally, a good rule would avoid making technical assumptions that could quickly prove outdated. It will require careful thought to articulate clear legal principles that will continue to be meaningful even as the technologies underlying the internet evolve rapidly.

Unfortunately, these difficult questions have been overshadowed by the bitter argument over reclassification. Interest groups on both sides are investing so much in arguing about whether to reclassify (and the complex legal maneuvers required to avoid triggering counterproductive regulations in the process) that there's been almost no discussion of what the FCC should do with its expanded authority once it has it.

This wouldn't be true if Congress, rather than the FCC, were working on network neutrality regulations. Congress wouldn't need to fit its rules into outdated legal categories, it could create a new category tailor-made for broadband.

Why Congress, not the FCC, should decide big policy questions

(Tom Williams/CQ Roll Call)

When Congress crafts legislation, it does so in public with ample opportunities for public input. This is less true at the FCC. True, the agency unveiled an initial proposal in May and sought public comment on it. But that's the extent of public participation. The FCC will likely deliberate in secret, with minimal public input, between now and the date the final rule is announced.

That would be fine if the FCC were merely filling in the details of a legislative scheme previously created by Congress. But what Wheeler is trying to do is a lot more ambitious. The public ought to have more input.

And the rules Wheeler develops are likely to be scrapped the next time a Republican is elected. Uncertainty about the rules makes it harder for companies in internet-related fields to make long-term plans.

Of course, Congress can change its mind too. But the compromises required to get legislation approved by both houses of Congress and signed by the president should lead to a consensus that makes drastic changes much less likely.

A legislative compromise could constrain the power of future FCC chairs so that they can't make such drastic changes to the law in the future. While that might not be as good, by Republican lights, as barring network neutrality rules altogether, it could also rule out a worst-case scenario in which a future Democratic president puts a progressive ideologue such as Susan Crawford in charge of the FCC. Current laws would give her a lot of power to reshape how the internet is regulated.

The problem is that there doesn't seem to be any room for consensus. Republicans oppose any kind of network neutrality regulations, and the Republican caucus has not shown much appetite for compromise. Democrats won't accept legislation that doesn't leave room for at least some network neutrality protections. And so the result will be a legislative stalemate and a chaotic regulatory environment that will serve everyone poorly.

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