Network neutrality is probably the most polarized technology issue in Washington DC. Throughout the Obama years, most Democrats have been for it, while most Republicans have been against it. Mitt Romney opposed network neutrality in his 2012 campaign. Ted Cruz called it "Obamacare for the internet" back in November.
Yet in an op-ed for Reuters on Wednesday, Sen. John Thune (R-SD) and Rep. Fred Upton (R-MI) endorsed network neutrality and called for a bipartisan compromise to defend it. This could be a big deal because the authors chair key committees in their respective houses of Congress.
This is the most conciliatory note senior Republicans in Congress have sounded on this issue in years. Thune has been calling for Congress to overhaul telecommunications law for a while, but when he talked about the topic a year ago, he didn't specifically endorse network neutrality regulations. In April, Upton called network neutrality regulations "a solution in search of a problem."
Now the two men say they want to "prohibit blocking and throttling" and make it illegal for internet service providers to "charge a premium to prioritize content delivery." In other words, they're in favor of network neutrality.
A shifting political landscape
Tom Wheeler, President Obama's choice to lead the Federal Communications Commission, may have forced Thune and Upton's hand. He's widely expected to push through a controversial plan to subject broadband networks to public utility regulation, a legal tactic known as "reclassification." Five years ago, this approach was so unpopular that opponents — including dozens of Democrats in Congress — described it as the "nuclear option" of broadband policy.
But the political landscape shifted in 2014. Wheeler originally wanted to adopt only weak net neutrality rules that would leave room for big companies to pay for online "fast lanes." Grassroots activists pressured him to adopt stronger rules, and that was only possible with reclassification. Democrats in Congress increasingly supported this idea; when the cable industry tried to organize a letter opposing reclassification last May, they could only find 20 Congressional Democrats to sign on, down from 74 in 2010.
Then in November, President Obama himself endorsed reclassification. Officially this doesn't matter, since the FCC is an independent agency. But Obama's endorsement of the idea made it harder for Wheeler and the rest of the FCC's Democratic majority to ignore it.
The FCC is now widely expected to reclassify. If it does so, Congress could lose a lot of influence. The FCC would have expanded power over broadband networks without further Congressional action. So Thune and Upton seem to be moderating their stance in hopes of striking a compromise — before the FCC pulls the trigger.
Why Thune and Upton face an uphill climb
I've argued before that it would be best for Congress, not the FCC, to resolve the network neutrality debate. Reclassification would give the FCC the power it needs to enact network neutrality regulations, but it would also trigger other rules — including "rules about obscene phone calls, rate schedules, telephone operator services, and carrier reporting requirements" — that were designed for old-fashioned telephone networks, not the modern digital world. Protecting network neutrality using reclassification would be pounding a round peg into a square hole. Only Congress has the power to reshape the hole.
But Thune and Upton face two big obstacles: Republicans and Democrats.
On the Republican side, the big problem is that the pair don't necessarily speak for everyone in their party. There's no sign that Cruz has rethought his view that network neutrality is "Obamacare for the internet." And after nearly a decade of conservative criticism of the concept, it will be a big challenge to get the Republican party to embrace serious network neutrality rules.
At the same time, Democrats are increasingly unified in support of network neutrality, and they sense that they have the upper hand. Wheeler can reclassify without help from Congress, and Obama can veto any effort by Congress to stop Wheeler's rules from taking effect. So Democrats may not feel they have much to gain in signing onto a compromise that establishes weaker network neutrality rules than the ones Wheeler is planning.
However, it would be a mistake for Democrats to dismiss Thune and Upton's overtures out of hand. Reclassification will likely allow Wheeler to establish workable network neutrality rules, but those rules would still have a lot of rough edges. Only Congress has the power to fully update the law and tie up the various loose ends reclassification would create.
And there's a larger issue too: Obama and Wheeler can only impose network neutrality rules until January 2017, when they'll be replaced by a new president and FCC chairman. If the next president is a Republican, he or she could appoint a new FCC chairman who could undo all of Wheeler's work. Legislation can do two things: it can cement network neutrality rules into law, and it can build bipartisan support for the concept. That would make it more likely that network neutrality will be protected regardless of who wins the White House in 2016.