Opinion: What President Obama didn’t say in his call for Net neutrality rules

Depending on whose spin you believe, Federal Communications Commission Chairman Tom Wheeler is either thanking President Obama or shaking his fist at him for weighing in -- again -- on Net neutrality.

Advocates of strict rules based on 20th-century telephone regulations praised Obama’s remarks, saying they amounted to a denunciation of the tentative rules the FCC put out for public comment earlier this year. Other analysts agreed, but saw Obama giving Wheeler political cover to switch to a tougher regulatory approach.

A closer examination of what Obama actually said, however, reveals little daylight between the president’s stated position and Wheeler’s own remarks the day the FCC proposed the rules. Both want to prevent Internet service providers from harming the openness that has bred so much innovation and unleashed so much information. The question is how to do so. And Obama stopped short of telling Wheeler to take a different regulatory path than the one he’s proposed.

That proposal tries to preserve the open Internet by outlawing “commercially unreasonable” deals between ISPs and “edge providers,” the websites and apps that offer content and services to Internet users. Some Net neutrality advocates say this prohibition wouldn’t go far enough to stop websites with deep pockets from paying ISPs to prioritize their data over that from upstart competitors and other less well-heeled sites. They want the FCC to reclassify broadband Internet access as a “telecommunications service” instead of an “information service,” which would make it subject to regulation under Title II of the Communications Act. Critics of reclassification respond that it makes no sense to apply Title II, much of which was written in the 1930s to regulate the prices and profits of local phone monopolies, to 21st century technology.

At an event in Santa Monica on Thursday, Obama reiterated the unequivocally pro-neutrality position he took as a candidate in 2007. “I think it’s what has unleashed the power of the Internet, and we don’t want to lose that or clog up the pipes,” the president said, evoking the “series of tubes” imagery cast memorably the late Sen. Ted Stevens.

He went into more detail, and here’s where things get tricky for Wheeler and his proposal. “I know one of the things that people are most concerned about is paid prioritization, the notion that somehow some folks can pay a little more money and get better service, more exclusive access to customers through the Internet,” Obama said. “That’s something I’m opposed [to]. I was opposed to it when I ran. I continue to be opposed to it now....

“My appointee, Tom Wheeler, knows my position. I can’t -- now that he’s there, I can’t just call him up and tell him exactly what to do. But what I’ve been clear about, what the White House has been clear about is, is that we expect whatever final rules to emerge to make sure that we’re not creating two or three or four tiers of Internet. That ends up being a big priority of mine.”

But how different is that from Wheeler’s own rhetoric? Here’s what the chairman said in May, shortly before voting to put the latest rules out for comment:

“There is only one Internet. It must be fast, robust and open. The speed and quality of the connection the consumer purchases must be unaffected by what content he or she is using. And there has to be a level playing field of opportunity for new ideas.

“Small companies and startups must be able to effectively reach consumers with innovative products and services and they must be protected against harmful conduct by broadband providers. The prospect of a gatekeeper choosing winners and losers on the Internet is unacceptable.”

Those comments haven’t moved critics of Wheeler’s proposal, who have argued that it would allow ISPs to create tiers of fast and slow lanes in the last mile. As the liberal advocacy group Free Press put it Friday, “Obama’s position clearly contradicts Wheeler’s current proposal, which would allow Internet access providers to favor the content of a few wealthy companies over other websites and services.”

That’s not a statement of fact, however, it’s just an expression of opinion about Obama’s meaning and the likely result of Wheeler’s proposed rules. And that’s exactly the same denunciation some critics levied against the Net neutrality rules the FCC adopted in 2010 under Obama’s first appointee as FCC commissioner, Julius Genachowski. Those rules would have barred ISPs from discriminating unreasonably among edge providers, which the commission said would likely but not necessarily bar paid prioritization.

To these advocates, nothing less than a rock-solid prohibition against prioritizing traffic in the last mile will do. And the only way to impose such a prohibition, in their minds, is to reclassify broadband access and regulate it under Title II.

Obama’s comments display the president’s typically strong grasp of the policy issues. But while he denounced paid prioritization, he notably did not include a specific call for reclassification, which is so strongly opposed by ISPs that it would be sure to draw a challenge in court and in Congress.

For his part, Wheeler has suggested the FCC could stop paid prioritization by finding it to be anticompetitive and thus commercially unreasonable. The commission has also explicitly left open the possibility of reclassifying broadband access (or some portion of it) as a Title II service if that’s the most effective way to preserve an open Internet.

If there’s any gap between the positions taken publicly by the president and Wheeler, it’s that the latter has entertained the possibility that some kinds of deals between ISPs and edge providers might actually be beneficial to consumers. One example his aides have given is a health service that lets doctors monitor a patient remotely but in great detail, which may not be feasible without prioritization to ensure that it would work even when networks were congested.

Like the FCC’s 2010 rules, Wheeler’s proposal is based on the commission’s authority under Section 706 of the Communications Act, which a federal appeals panel ruled earlier this year could be used as the bases for Net neutrality regulations. The problem with the 2010 rules, the appeals court held, was that they went too far, imposing the sort of obligations that the commission could impose only on telecommunications services covered by Title II. To solve that problem, Wheeler’s proposal replaced the “unreasonably discriminatory” standard in the 2010 rules with the “commercially unreasonable” standard the same appeals court had approved when the commission regulated wireless roaming agreements.

That means the commission would consider deals between ISPs and edge providers on a case-by-case basis, a flexibility that some critics abhor. But the flexibility would be limited, Wheeler said in May, because the commission’s definition of commercially unreasonable would stop ISPs from slowing connections or prioritizing them in a way that denies consumers “the full connectivity and the full benefits that connection enables.”

That’s the intent, at least.

The comments submitted by the public have run strongly against Wheeler’s proposal and in favor of rules based on Title II. The two other Democrats on the five-member commission also have spoken approvingly of reclassification, raising the pressure on Wheeler to move in that direction. But by not explicitly calling for reclassification Thursday in his Net neutrality remarks, the Chief Policy Wonk in the White House didn’t line up squarely with that faction -- at least not yet.

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