By Peter Suderman
This morning, FCC Chairman Julius Genachowski announced that the FCC would vote on Net neutrality rules at its December 21st meeting. In a speech, he outlined the basic shape of the proposal, but didn’t provide much in the way of specifics.
Here’s what we do know. Wireless won’t be subject to the same strict rules as wireline service, though it may have some lighter restrictions placed on it. The FCC will propose rules under its Title I authority, so the most drastic option—a Title II reclassification that would have imposed legacy telephone-style rules on the Internet’s infrastructure—appears to be off the table for now. That option had been floated earlier this year after a judge ruled that the FCC’s proposed justification for regulating Net neutrality under Title I wouldn’t fly.
So how does Genachowski figure the FCC will regulate under Title I if a judge has already ruled that the agency doesn’t have the authority to do so? The wiggle room here comes from the fact that although the judge said that the FCC’s justification was no good, he also left room for the FCC to attempt to justify its authority some other way—which is probably what the FCC will attempt to do when the rule is challenged.
And if the rule passes at the end of this month, sources close to the Commission tell me it’s a virtual certainty that it will eventually be challenged in court. But given that the FCC made a very serious effort to justify its authority last time around, and still failed, there’s no certainty that it would win.
So why go for it? In part, as Larry Downes, a Fellow with the Stanford Law School Center for Internet & Society, writes, one reason may be that the impending change of power in the House forced Genachowski’s hand:
This was Genachowski’s last chance to wrap up the proceedings before the new Congress, with its Republican House and more even Senate, clocks in. Republicans on their own don’t have the votes to pass legislation that would have blocked the FCC from voting on net neutrality later, but Republican leaders had threatened to use their oversight authority to put additional pressure on the FCC not to enact new neutrality rules.
Net neutrality was an Obama campaign promise, and although it was never an issue that motivated a large number of voters, it has remained important to a small but vocal class of activists. And those activists have continued to press the FCC and the Obama administration to pursue additional regulation.
But progress the issue has stalled since the court’s ruling earlier this this, tying up a lot of energy with it. It’s become a drag on the agency’s agenda. At this point, it seems clear that both the FCC and the White House are interested in moving on. But they still need to appease the base and make some effort to check off the Net neutrality box on the campaign promises list. That may shed some light on why the White House, which has already released a statement in favor of the measure, seems so interested in building support and getting this passed quickly.
As Downes explained in an email to me, “The Chairman may be fully aware that a Title I rulemaking will lead to expensive protracted litigation the Commission is unlikely to win, but may be willing to do it anyway just to get Net Neutrality off his plate.” In other words, we may be in for a protracted legal battle just so the administration can save face.