Most network neutrality supporters regard the new regulations that Federal Communications Commission Chairman Tom Wheeler proposed this week as a victory for the open internet. But it was also a personal victory for Tim Wu, the Columbia Law School professor who coined the term network neutrality more than a decade ago and has been one of its leading champions ever since. (See our previous interview with Wu here.)
The debate over internet regulation has been focused on two provisions of telecommunications law, known unimaginatively as Title I and Title II. For the last decade, the FCC has regulated internet access under Title I, a low-regulation framework designed for online services. However, last year the courts ruled that Title I didn't give the FCC enough authority to establish strong network neutrality rules.
Wheeler's proposal would, for the first time in more than a decade, apply Title II to internet access. Title II is the part of the law designed for public utilities like telephone service. Wu believes that Title II will give the FCC a much firmer foundation for its new regulations.
Wu also has a surprisingly positive view of a Republican alternative to Wheeler's proposal. In recent weeks, a lot of network neutrality supporters have blasted the Republican legislation as a cynical ploy to undermine support for Wheeler's rules. While Wu says he prefers Wheeler's proposal, he also says the Republican bill is "a decent network neutrality bill" and "not a joke." He argues that shifting public opinion may push Republicans in a more pro-net neutrality direction.
I spoke to Wu by telephone on Thursday. The conversation has been edited for length and clarity.
Timothy B. Lee: What do you think about the new network neutrality rules Chairman Wheeler proposed this week?
Tim Wu: It's a new day and I think it's frankly a new era in all of telecom regulation. I think it may be that 2015 ends up being the marker of a whole new approach.
The banner of telecom regulation from 1934 until 1984 was regulated monopoly. Obviously that ended when AT&T was broken up. Then there's an era, I guess roughly between 1984 and 2015, which is marked by an increasingly deregulatory approach. Every time a law is passed it deregulated. Now the centerpiece of telecommunications policy is a net neutrality rule, which started out very remote and obscure and has kind of become front and center.
Timothy B. Lee: The part of the proposal that's gotten the most attention was Wheeler's decision to treat internet access as a public-utility service under Title II of the Telecommunications Act. But he also made some other important decisions, like applying the rules to wireless networks and regulating how big residential providers like Comcast and Verizon connect to the larger internet. Do you think he made the right calls there?
Tim Wu: I'm broadly in favor of what he did. I think it represents a sense people have had for a long time that the internet has worked pretty well as it is, and has driven a lot of innovation and economic growth. It represents an industrial policy that if we equalize the odds between big business and small business that something good will happen.
The legal significance is that Title II is a much more stable framework than the ad hoc rules that have been the norm up until now.
The details of the proposal are not unexpected. The only kind of small question mark is what's going to happen with interconnection. The interconnection rules do not include a ban on fees for access, which some people called for.
As you've written, a lot of people fear network neutrality might become irrelevant [if broadband providers are able to use peering agreements to favor some content over others]. I don't know if the FCC has solved that problem completely. But they've given themselves the authority to deal with it.
Timothy B. Lee: There's been a fair amount of criticism of this proposal from Republicans. What do you think will happen next time a Republican takes the White House? Do you think they'll reverse Wheeler's rules?
That's possible. The real question has always been where are the norms. There's always going to be a couple people holding out. At some point there's a normative flip that becomes more powerful than the legal.
Technically during the Bush administration when Republicans had the White House and a Republican Congress, they could have tried to get rid of Social Security or Medicare. But they didn't. What the public thinks matters.
Support for banning slow lanes is very high, even among Republicans. People will say things that are inconsistent: "I don't think the government should mess around with the internet." But they also think there shouldn't be slow lanes.
The Republican bill in Congress now is a decent network neutrality bill. It's not a joke. It's sort of strange that that's where Republicans are right now.
Unlike Obamacare, where I think there is residual resistance, the consumer [argument against network neutrality] is a little hard to see. Consumers like the internet the way it is.
Timothy B. Lee: I'm interested to hear you say the Republican bill isn't a joke, because a lot of people on your side of the network neutrality debate have argued that it's a kind of sham intended to undermine support for Chairman Wheeler's rules. Do you think that's wrong?
When I say it's not a joke, what I mean is substantively it's more support of network neutrality than I would have expected. To be clear, it's weaker than what I favor. But it's not non-existent. It somehow recognizes the existence of the norm in favor of network neutrality.
Timothy B. Lee: One argument in favor of the Republican bill is that it would provide more predictability about the future of network neutrality. Rather than having the rules change every time a different party took over the White House, the argument would be settled by Congress.
Tim Wu: I don't know what the difference would be. It's always going to be the FCC doing this. No one thinks that Congress is an expert agency able to write good net neutrality rules. It's sort of a false choice, because it's always going to be the FCC.
I think Congress in 1996 with the forbearance law [which allows the FCC to decide not to enforce regulations if they're obsolete] set up what's happening now. We can anticipate situations where it's not important to have the full [regulations spelled out in] Title II. What the FCC did is basically use forbearance. Forbearance is showing its wisdom.
Timothy B. Lee: But wouldn't there be some value in reducing the FCC's discretion to make the law more predictable? Otherwise you could wind up with strong network neutrality under Democrats and no network neutrality under Republicans, and nobody can predict what the rules will be.
Tim Wu: It's a good question. Do we want more predictability? I guess it depends on whether you believe in agencies. It's almost a constitutional question.
The agency is closer to the ground. They're able to move more quickly than Congress and less randomly. When you're talking about choosing your poison, I guess I'll choose an expert agency. The fact that the FCC can change the rule is not necessarily a bug but a feature.
Timothy B. Lee: Do you expect these new rules to be challenged in court?
I think companies sue almost as a matter of reflex. But all the cable and phone company stocks went up [after Wheeler announced his proposal]. I think someone has to be wondering, "what if we sue and our stocks go down and we're going to look pretty stupid."
It's possible the companies say "we're making a lot of money. Things are relatively healthy. They're not really messing with stuff they're going to do at this point. Why are we going to bother?"
Odds are there will be a lawsuit. But I was more sure about that before.
Timothy B. Lee: If there is a lawsuit, do you think the rules will be invalidated?
I think it's unlikely. If I wanted to go into court with Title I or Title II, it's no question which one I'd rather be there with. [Title I, which governs online services, gives the FCC only limited regulatory authority. Last year, the courts rejected a previous FCC network neutrality rule that relied on Title I. Title II, which regulates common carrier services, is the basis for Wheeler's new proposal]. In its last opinion, the DC Circuit pretty much said "why didn't you do this with Title II. If you wanted to do common carrier rules, why not use the common carrier authority?"
Switching from Title I to TItle II requires a showing that things have changed since 2000, [when the FCC originally decided to use Title I]. Its main resting point [for using Title I] was that when you order broadband, you want email and webpages, all bundled together. Last time I checked, I don't think people are signing up for broadband so they can get the website that comes with it. Things have changed. I think if you read the 2002 cable modem order [which put internet access under Title I] you'll start laughing. Nobody buys it any more.
It would take some activism for the courts to strike down Wheeler's rules.
I think I would have decided [the 2014 court decision striking down the previous rules] that way myself. If I was a judge, and I didn't have a dog in the fight about network neutrality, I think I would have probably agreed with [Verizon, who was challenging the rules]. If you read the statute, you say "you've got to be kidding me."
It's funny, I'd go into DC and people would say "Title I authority is so great." Then I'd look at it with my law students and we'd say "what is this?" You're basing your regulatory regime on it with a hope and whisper.
Now they're using [Title II], the main authority of the FCC. It was created by Congress in 1934. So maybe they'll have one or two [parts of the Wheeler proposal] knocked out, but I can't see them losing.