Net neutrality takes new twist as Congress appears ready to step in

A political battle in Washington, D.C. is heating up as the Federal Communications Commission strongly hints its new Net neutrality rules, which will be voted on next month, will include President Barack Obama's directive to reclassify broadband as a utility.

On Wednesday, FCC chairman Tom Wheeler said during a discussion at the Consumer Electronics Show in Las Vegas the FCC plans to vote February 26 whether to reclassify Internet service providers as common carriers under the Title II of the Communications broadband traffic.

The issue of how broadband traffic should be classified has been a hot button issue in the debate over the Net neutrality. Sometimes referred to as Open Internet, Net neutrality is the principle that Internet service providers give equal access to content and applications without favoring or blocking certain kinds of products or sites.

Large broadband providers, such as AT&T and Verizon, say that reclassifying broadband as a utility will stifle innovation by imposing antiquated telecommunications regulations. Some consumer advocates and content companies, such as Netflix, say reclassifying broadband services as utilities is the only way to ensure that the Internet will give equal treatment to content and sites.

Wheeler declined to elaborate on how the FCC will vote. The FCC's move comes after strong urging from President Obama, who says it will help make the Internet more accessible for users and businesses alike.

The debate over how broadband should be classified has already spurred reactions in Congress, where Democratic and Republican leaders are preparing legislation. In December it was reported that Republican leaders were working on legislation that would prevent Internet service providers from blocking or slowing down Internet traffic or allowing broadband providers to charge content companies, such as Netflix, for priority access to their networks. Such legislation would provide a legal basis for the rules without changing how broadband is classified.

This week, Politico reported that Senate Commerce Committee ranking member Bill Nelson (D-Fla.) has been working on a Net neutrality bill with the committee chairman, John Thune (R-S.D.).

Nelson told Politico that he and Thune had "talked extensively" about a bill that would solve the FCC's Net neutrality problem without transforming ISPs into public utilities, but that the two "don't have any resolution."

Meanwhile, Democrats in the Senate have beaten Republicans to the punch on introducing their own Net neutrality legislation. On Wednesday, they revived a bill that would ban broadband companies from creating a "fast lane" on the Internet. The Online Competition and Consumer Choice Act, was reintroduced by Sen. Patrick Leahy (D-Vt.) and Rep. Doris Matsui (D-Calif.), and has the backing of other prominent Senate Democrats, such as Sen. Al Franken (D-Minn.).

Conflict with Congress?

If either legislation makes it into law, it would pre-empt the FCC's upcoming rule making set for next month. The chairman dodged questions about how he would respond to congressional action that could on the one hand pre-empt an agency rule making while at the same time resolve the nagging problem of regulatory authority once and for all without resorting to the public utility approach.

"We're coming out with the gold standard," Wheeler said. "If Congress wants to come in and say we want to make sure that this approach doesn't get screwed up down the road by some crazy future FCC chairman...." Wheeler did not finish his thought.

Congressional action, however, could do more than simply validate possible agency action. The FCC's lack of authority over broadband ISPs under current law "has been the real issue all along," said University of Pennsylvania Law School professor Christopher Yoo, who spoke earlier in the day at CES's annual Innovation Policy Summit.

The concept of Net neutrality itself, Yoo said, is nowhere near as contentious as the FCC's lack of congressional authority to enact and enforce rules that regulate broadband Internet service in the first place.

Federal courts have twice rejected earlier FCC efforts to regulate ISPs, most recently in January 2014, when the latest round of Net neutrality debates restarted. The rulings found fault not with the rules, however, but rather with the agency's authority to make them.

Wheeler wrote in a blog post soon after the January ruling that the court had finally given the FCC actionable guidance on how to proceed under current law, citing a provision known as Section 706 that gave the FCC authority to promote broadband.

In April, the agency issued a Notice of Proposed Rulemaking to restore the 2010 rules rejected by the court, basing its authority on Section 706.

"[T]he simple fact is that the court has provided a legal roadmap for how we can protect Net neutrality and do so expeditiously," Wheeler wrote in late April. "The recommendation on which we seek comment would result in timely and meaningful Open Internet rules. ... We have been talking about Net neutrality for a decade; it is time to put something in place -- and to do it with dispatch."

The question may soon become not how the FCC will vote, but whether they will wait for Congress to pursue a potential bipartisan compromise.

Stay tuned.