FCC Passes Net Neutrality Proposal Along Party Lines

LOS ANGELES—As anticipated, the FCC today passed the "Net Neutrality" proposal put forth by Chairman Tom Wheeler and supported by the Commission's two other Democrats, Mignon Clyburn and Jessica Rosenworcel, with vociferous and fierce opposition by the two Republicans, Ajit Pai and Michael O'Reilly. It was 3-2 vote. Despite the fact that the outcome of the vote was a foregone conclusion, the sense of tension in the hearing room was palpable, a result of an occasion perceived to be historic by those on either side of the issue. Indeed, like so many other issues being debated today, this one sees very few people staking out a middle ground, if there is one. In utilizing Title II of the Communications Act of 1934 as one of its foundational authorities underpinning the proposal approved today, which designates the internet as a "common carrier," the FCC guaranteed that passions would be raised to fever pitch. That sense that an historic ovvereach was in the offing permeated the remarks prior to the vote made by the Commission's two dissenters. Sitting at either end of the dais, the two young men each characterized the impending vote as a disaster for the future of broadband development and access in the United States. Pai in particular took direct aim at the motivation behind the proposal, charging that the only reason it invoked Title II is because "President Obama told us to do so," and even playing the soundbite of the President asking the FCC in fact to use Title II. Calling "the plan the problem," he said that if it is not checked by the inevitable lawsuits that will follow, it will inevitably lead to higher broadband process, slower speeds, less development and fewer options for consumers. As far as the government's promise to maintain a regulatory "light-touch" on ISPs and internet development, Pai called it "fig leaf forbearance." Paraphrasing President George H.W. Bush, he said, "Read my lips: more new taxes are coming. It's just a matter of when." His philosophical and political colleague, O'Reilly, covered much of the same ground as Pai, referring to Title II as a "nuclear option," referring to the process of forbearance promised by the FCC as "fauxbearance," and warning of the use of the underlying authority, "This is not Title II-lite." Not surprisingly, the comments made by the three Democrat supporters of the proposal were less imflammatory than those made by the Republicans, and tended to focus on the positive and historic nature of the occasion, emphasizing the democratic nature of the FCC's decision-making process and the sense that the proposal was meeting the needs of consumers and abiding by the directive of Congress to keep the internet open and free without creating obstacles to innovation and development. In that sense, and even before the actual vote, they each engaged in a little self-congratulation, even though today's vote is just the beginning of the process. Mignon Clyburn, a solid supporter of the proposal who nonetheless expressed her concern that the government maintain that light touch, said of today's vote, "It's our third bite at the apple and we must get it right," referring to past attempts to pass net neutrality, and an admission of how difficult it has been. Jessica Rosenworcel, whom Chairman Wheller noted had been an active proponent of the proposal, spoke briefly but proudly about the moves being made by the FCC, referring to the internet as "our printing press, our town square," and saying that the proposal represented the FCC's responsibility to protect the free foundation of the internet and the internet economy. She also called the FCC's decision-making process "democracy in action." Chairman Wheeler spoke last, keeping his remarks relatively brief but pointed. Expressing his immediate thanks to the 4 million people who sent comments into the FCC over the proposal, he said in no uncertain terms that the issues at stake for the internet and, more to the point, broadband access for all, were too important not to be addressed in the manner contained in the proposal. "It's too important to allow broadband providers to make the rules," he said without nuance. He responded with simlar directness to the widespread claims of late that the proposal was, as he put it, "A secret plan to regulate the internet." "Nonsense!" he replied, adding, "It is no more that than the First Amenment is a plan to regulate speech," to which the packed room erupted in applause. While some may indeed quibble with his characterization of the First Amendment as a non-regulatory directive by the Founding Fathers, Wheeler made no bones about the fact that the FCC was using what he called "all tools in the toolbox to protect innovators and consumers," and called the proposal's baseline provisions to ban blocking, ensure unfettered access to any lawful content and ban throttling "enforceable bright-line rules" that extend not only to current ISPs but also to future products developed for the internet. It should also be noted that all three supporters of the proposal expressed special appreciation for utilizing the authorities available to them to bring hardwired and mobile broadband access together under the new proposal, a development that the opponents said was problematic. Prior to the net neturality vote, the Commission also voted along party lines to limit the authority of state governments to prohibit local municipalities from developing their own broadband networks. To be continued...