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Is network neutrality becoming a partisan issue?

John Boehner, the Republican House Speaker, and President Barack Obama.
John Boehner, the Republican House Speaker, and President Barack Obama.
Olivier Douliery-Pool/Getty Images

The network neutrality debate wasn't always so partisan.

When the Federal Communications Commission votes February 26 on chairman Tom Wheeler's proposed regulations to protect network neutrality, it will almost certainly be along partisan lines, with the agency's three Democrats supporting the proposal and its two Republicans opposing it.

Attempts by Congressional Republicans to broker a compromise on the issue have attracted little interest from Democrats, who seem happy to simply rally around Wheeler.

Things used to be different. The network neutrality debate has never been perfectly bipartisan, but there used to be enough centrist Democrats and Republicans to make compromise a possibility. But the polarization that has divided so much of Washington has been seeping into the network neutrality fight, making it harder than ever to reach consensus.

The big question is what will happen the next time Republicans capture the White House. One possibility is that they would reverse Wheeler's rules, returning us to a world with limited or no network neutrality rules. But another possibility is that public opinion will have shifted to the point where even Republicans aren't willing to overturn network neutrality rules.

2008 was another country

Kevin Martin, Chairman of the FCC during George W. Bush's second term. (Kevin Clark/The Washington Post/Getty Images)

This month's FCC vote will be its third attempt to establish a legal framework for protecting network neutrality, the principle that all content and applications should get equal treatment online. The first two attempts certainly engendered some controversy, but the debate over them was not nearly as polarized as this year's debate has become.

The first attempt occurred in the closing years of the George W. Bush administration. The FCC was led by Republican chairman Kevin Martin. He was upset that Comcast violated the FCC's open internet principles — which had been drafted by Martin's predecessor, Republican Bush-appointee Michael Powell — by interfering with people's use of a file-sharing software called BitTorrent.

The commission voted three to two to sanction Comcast, with Martin siding with the commission's two Democrats. The cable giant challenged the decision, arguing that the FCC hadn't gone through proper procedures to make its open internet rules legally binding. The courts agreed and struck down the rules.

By this point, Barack Obama was in the White House, and his friend and fellow Democrat, Julius Genachowski, ran the FCC. Genachowski considered regulating the internet like a public utility — the exact step the FCC is expected to take later this month. But Genachowski decided not to after receiving a letter from 282 members of Congress, including 74 Democrats, arguing that this would be a mistake. So Genachowski sought a middle ground, establishing network neutrality rules without invoking the public-utility provisions of communications law. This proposal passed on a party-line three to two vote.

Unfortunately for Genachowski, the courts rejected the rules again in 2014, finding that strong network neutrality regulations were only legal if the agency first reclassified broadband as a public utility.

With the ball back in the FCC's court for a third time, the agency was now headed by Tom Wheeler. His initial instinct was to follow in Genachowski's footsteps and try to protect network neutrality without invoking public-utility rules.

But the political terrain had shifted. When cable giants tried to organize another letter opposing utility-style regulation in May, only 20 Democrats in Congress signed on. Meanwhile, network neutrality supporters organized against the rules, arguing that they fell short of what was needed to protect the open internet.

In November, these activists received the backing of President Barack Obama, who called on Wheeler to classify the internet as a public utility. Wheeler listened.

A Republican backlash

Sen. John Thune (R-SD) is flanked by Majority Leader Mitch McConnell and other Republican senators on June 24, 2014. (Mark Wilson/Getty Images)

But while net neutrality advocates are cheering, Wheeler's proposal angered Republicans like Sen. John Thune (R-SD), the chairman of the Senate Commerce Committee. In recent weeks, as it became clear Wheeler was moving toward treating internet access as a public utility, Thune had been striking a more conciliatory tone. Recently, he proposed legislation that will — he says — protect network neutrality without imposing burdensome regulations on the internet.

But there's little reason to think that Thune has had a change of heart on the net neutrality issue. It appears to be a tactical retreat, designed to forestall stronger regulation. And it has attracted little interest from Democrats, who have united behind Wheeler's more aggressive approach to the issue.

Ryan Radia, a telecom policy expert at the libertarian Competitive Enterprise Institute, expects the Republican-controlled Congress to become more hostile toward the FCC as the result of Wheeler's latest move.

"If Tom Wheeler wanted to anger Congressional Republicans, he's done it," Radia says. "For the rest of this congress, Republicans will do what they can to make things unpleasant for the FCC."

Radia notes that Thune recently proposed requiring Congress to regularly reauthorize the FCC, effectively putting the independent agency on a shorter leash. As Congress works to overhaul telecommunications law in the coming years, Republicans will be more leery of giving the FCC broad authority, he says.

And Radia predicts that if a Republican captures the White House in 2016, he will appoint someone who will go to work reversing Wheeler's network neutrality rules.

There will be pressure in the opposite direction on the Democratic side. Future Democratic nominees will be expected to support not just network neutrality in the abstract but the kind of strong network neutrality regulations Wheeler has developed.

In short, future Republican presidents will be expected to apply an ideological litmus test that will rule out centrists like Kevin Martin. Future Democrats will face pressure not to appoint centrists like Julius Genachowski.

This could make it hard to get stable, permanent rules for the internet. Instead, we could get stuck alternating between strong network neutrality protections under Democratic presidents and no network neutrality protections under Republicans. With neither side willing to give ground, Congress will be unable to overhaul the increasingly outdated 1996 law that currently governs telecommunications.

A new consensus?

Tim Wu. (Stanford Center for Internet and Society)

Another possibility is that for all their bluster today, Republicans won't actually try to reverse Wheeler's rules down the road. Tim Wu, the man who coined the term network neutrality, thinks that's likely. "At some point there's a normative flip that becomes more powerful than the legal rules," Wu says. If public support for network neutrality is strong enough, Republicans may feel pressure to protect it despite ideological pressures in the opposite direction.

He points out that while some conservative ideologues dislike entitlement programs like Social Security and Medicare, Republicans haven't tried to abolish those programs because the public backlash would be too great. Many conservatives are concerned about higher divorce rates, but Republicans aren't trying to place new limits on divorce.

"The public support for banning slow lanes is very high, even among Republicans," Wu says. Conservatives don't want the government meddling with the internet, but they also don't want cable companies controlling what content people access online.

"Consumers like the internet the way it is," Wu says. So unless network neutrality rules cause unexpected problems, Wu argues, a future Republican-controlled FCC will think twice about reversing Wheeler's rules.