With the Federal Communications Commission on the brink of establishing strong network neutrality rules, Republicans in Congress are scrambling to preempt the agency with legislation of their own. Supporters of the bill say it gives net neutrality advocates exactly what they've asked for, making action by the FCC unnecessary. But longtime net neutrality boosters aren't buying it.
The Republican bill, sponsored by Sen. John Thune (R-SD) and Rep. Fred Upton (R-MI), is "network neutrality in name only," according to the legal scholar and net-neutrality supporter Barbara van Schewick. The liberal activist group Demand Progress calls it a "cynical ploy," adding in an email that "in a town used to policy flip flops, this is a pirouette of Olympic caliber."
Today both houses of the new Republican Congress are holding hearings meant to lay the groundwork for a bipartisan network neutrality deal. But network neutrality supporters, sensing that they have the upper hand, see little reason to compromise.
Republicans used to oppose network neutrality regulations
Network neutrality is the idea that internet service providers should offer a level playing field between different applications and types of online content. Network neutrality advocates worry that if ISPs start giving higher priority to content from big companies that pay them extra, startups and other small content providers could get squeezed out.
But critics, including many Republicans, have long argued that market forces can safeguard online innovation without government involvement. Last May, Upton was describing network neutrality rules as a "solution in search of a problem."
Network neutrality supporters believe that in order to fully protect network neutrality, the FCC needs to declare broadband providers to be common carriers, an option known as reclassification. But until last year, opponents had managed to brand this option as politically toxic — the "nuclear option" of internet regulation.
A massive internet protest changed that. When Tom Wheeler, President Obama's choice to head the Federal Communications Commission, unveiled a proposal that didn't involved reclassification in May, internet activists revolted. They were aided by a John Oliver segment that racked up 7 million views on YouTube. In November, President Obama threw his weight behind reclassification. The pressure worked; in recent weeks, Wheeler has signaled he intends to adopt the stronger network neutrality rules that activists have been demanding.
That has alarmed large broadband providers and their allies in Congress, because it potentially opens the door to regulations that go far beyond network neutrality. So after years of denying that any legislation was needed, Republicans are suddenly taking a conciliatory stance. Earlier this month, Thune and Upton announced their intention to introduce network neutrality regulations.
The new Republican proposal is a tactical retreat
Ryan Radia, a network neutrality skeptic at the libertarian Competitive Enterprise Institute, readily concedes that the GOP's changing stance is "kind of a flip-flop," but he says the shift is justified.
The problem, from Radia's perspective, is that Wheeler's reclassification proposal could open the door to a lot more intrusive regulation of the internet in the future. Critics like to point out that some of the laws governing common carriers, known to telecom insiders as "Title II," date back to the 1930s. In theory, regulating the internet under Title II could lead to the FCC dictating the prices broadband providers charge consumers and micromanaging how internet providers connect with each other.
Wheeler has made it clear that his rules will avoid applying the most burdensome regulations. But critics say that once the FCC has seized broader authority, nothing would stop a future FCC chairman from regulating the internet more aggressively. Republicans, Radia says, "think a world of net neutrality but no Title II is less harmful" than Wheeler's proposal to dramatically expand the FCC's authority over the internet.
"Republicans are calling the far left's bluff," Radia says. "You see Republicans coming forward with more or less what Democrats want. Title II has always been justified on the grounds that it's the legal source for net neutrality authority. It's difficult to see how that doesn't satisfy most if not all of what net neutrality advocates want."
Liberals aren't impressed by the Republican bill
Of course, most network neutrality advocates see things differently. John Bergmayer, a network neutrality supporter at Public Knowledge, acknowledges that Thune and Upton's legislation addresses some of the most frequently mentioned concerns of network neutrality advocates — including concerns about ISPs blocking or throttling content. But he says that other problems might crop up in the future, and the Republican bill would strip the FCC of authority to deal with them.
For example, Bergmayer worries that ISPs might harm competition by charging consumers different rates for different types of content — for example, charging customers extra fees when they download content from Netflix rather than Hulu. Or they might discriminate in interconnection deals, refusing to perform the upgrades necessary to deliver high-bandwidth content to their customers unless content providers paid extra. (Comcast and Verizon were accused of doing just that last year.)
The Republican bill appears to strip the FCC of authority to regulate these practices. And for Bergmayer — and many network neutrality supporters — that makes the legislation unacceptable.
Also, Bergmayer said, Thune and Upton's legislation relies on a cumbersome case-by-case process for policing network neutrality violations. Right now, the FCC can establish general regulations defining what constitutes illegal discrimination. But under the Republican alternative, an aggrieved party would have to bring a complaint before the FCC, a process that could take years and might not provide protections to others harmed by the same ISP conduct.
Van Schewick and her Stanford University co-author Morgan Weiland offer an even more scathing assessment of the Republican proposal, detailing seven different ways the bill falls short of full protection for an open internet. They note that the law includes several vague terms that could create loopholes for undermining network neutrality and gives the FCC limited authority to close these loopholes.
And the reality is that Democrats have little reason to compromise. Put simply, Wheeler doesn't need Congress's help to establish strong network neutrality rules. And that means Republicans have little leverage.
"It's definitely useful that Republicans are willing to go on the record with support for some version of network neutrality," Bergmayer says. But he argues that Republicans are going to need to offer a lot more in order to win bipartisan support.