The Federal Communications Commission is on the verge of releasing new, stronger network neutrality regulations. These rules are controversial because they are expected to declare residential internet access a public utility, which could open the door to more regulation of the internet in the future. To forestall that possibility, senior Republicans are working on compromise legislation that would establish network neutrality rules without taking the controversial public-utility step.
But conversations with insiders suggests that this Republican alternative is probably doomed. Democrats and liberal activists think they can get what they want without new legislation. Meanwhile, the Republicans who favor compromise face pressure from purists who oppose any legislation that would impose network neutrality regulations on the internet.
That's a shame. The internet deserves a more certain resolution to the net neutrality fight than Washington is giving it.
The network neutrality fight has been raging for more than a decade because current law, passed in 1996, is unclear about how the FCC should regulate the internet. At the time, the internet was a new technology and Congress was primarily focused on older telephone networks. So they wrote vague rules that effectively give the FCC broad latitude to figure out how to regulate internet access.
If FCC chairman Tom Wheeler establishes strong network neutrality rules in the coming weeks, as he is expected to do, these rules may not live much longer than Barack Obama's presidency. If a Republican is elected to the White House in 2016, it's a near-certainty that the new president will appoint a more conservative FCC chairman who will consider reversing many of Wheeler's reforms.
That's a problem because the whole point of network neutrality regulations is to create a predictable environment for online content producers. Network neutrality rules that could expire in 2017 won't give internet content providers the same kind of confidence that permanent rules could provide.
And a situation where the rules change every few years isn't great from the perspective of network neutrality skeptics, either. The public utility rules the FCC is expected to invoke give the agency fairly broad discretion. The next time a liberal takes the White House, she could appoint an FCC chair who imposes even stronger regulations. That kind of uncertainty could discourage investments in broadband.
A legislative compromise would leave both sides unsatisfied, but it would also provide some certainty about how the internet will be regulated in the future. That would give content companies and network providers alike the confidence to invest, knowing that their plans won't be disrupted by another change in the rules.
Network neutrality advocates have told me they prefer to have the FCC establish strong regulations first, and negotiate with Republicans after that. But the current situation, with the FCC on the verge of a major regulatory shift, gives network neutrality supporters unique leverage. Republican leaders — and their influential cable and telephone company allies — are highly motivated to cut a deal and preempt reclassification. But once the FCC reclassifies, that sense of urgency will be lost.