Neutral no more

Advocates for net neutrality confronted FCC chairman Tom Wheeler in his driveway this morning as he tried to leave for work. It turned out to be a harbinger of what turned into one helluva Monday for the man.

No sooner had Wheeler gotten to the office then the White House, in the person of President Barack Obama himself, rolled a live hand grenade into the chairman’s cautious and deliberative efforts to implement new net neutrality rules to replace the ones thrown out by a federal appeals court in January.

In a strongly worded and detailed statement and video, Obama called on the FCC to implement “the strongest possible rules to protect net neutrality” by reclassifying broadband networks, including wireless networks, as common carriers under Title II of the Communications Act, implicitly rejecting the “hybrid” approach to classification the chairman’s office had sent aloft in a trial balloon just over a week before.

“For almost a century, our law has recognized that companies who connect you to the world have special obligations not to exploit the monopoly they enjoy over access in and out of your home or business,” the White House statement said. “So the time has come for the FCC to recognize that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do.”

The grenade immediately detonated. Shares of Comcast, Time Warner Cable, Verizon, AT&T and other telecom companies plunged immediately after the White House statement was released while several of the companies and various telecom trade associations issued statements denouncing the White House plan. Verizon all-but threatened legal action should the FCC follow the president’s advice (a rather rich irony considering Verizon’s leading role in getting the industry to this point).

Wheeler, seemingly blindsided by the president who appointed him, could offer only a “hommina, hommina, hommina,” saying in a statement the agency needed more time to consider the issue.

The reaction the White House is likely most hoping for, however, was provided by Senator Ted Cruz, Republican of Texas and a likely GOP presidential candidate. In a tweet, Cruz labeled net neutrality “Obamacare for the Internet,” by which he did not mean that it would ultimately benefit tens of millions of Americans. “Obamacare” is fightin’ words to anyone in the GOP, and the president was clearly looking to pick a fight with his statement (the White House tweet about the statement was signed “bo,” signalling it was written by Barack Obama himself and not some staff person, which was like chum in the water for the GOP).

There were already plenty of Republicans on Capitol Hill opposed to having the FCC act more forcefully to “regulate the internet,” i.e. implement net neutrality rules. The House Energy and Commerce Committee has been working for a year on an overhaul of the Communications Act, which created the FCC, that was widely expected to put stricter limits on the agency’s authority. A Communications Act overhaul has also been a priority of Sen. John Thune (R-SD), no friend of Title II, who is expected to take the chairman’s gavel on the Senate Commerce Committee when the new Republican majority takes over in January. But now that Obama has put his clear personal stamp on the the issue, even Republicans who wouldn’t know Title II from the Tidal Basin, will be utterly, eternally and vocally opposed to reclassification.

Which probably suits the White House just fine. Having just seen the Democrats get stomped in last week’s midterms, losing their Senate majority, Barack Obama is now, oddly, both imperiled and empowered. With little to lose he has little to gain from being circumspect, and net neutrality is an issue he has endorsed — if not always aggressively advocated — since he was a candidate for president.

More to the point, though, by coming out forcefully for Title II (as well as regulating interconnections between networks) he forces the Republicans into the politically awkward position of seeming to defend Big Cable at a moment when the political momentum was almost entirely on their side.

Thanks to John Oliver, being pro net neutrality is now clearly the populist position. And as I’ve suggested here before, much of the clamor for net neutrality is rooted more in an inchoate populist rage at the growing corporate enclosure of the internet commons than in the legal or technocratic merits of Title II vs. Title I of the Communications Act. By picking this particular fight and thrusting himself into the middle of the net neutrality fight, Obama for the first time in a long time has populist energy on his side. The more fire he draws for it from the Republicans and from the ISPs the stronger his position.

Even the Obamacare comparison is probably helpful to the White House at this point. The embattled health care law is facing a new, and very dangerous threat as the Supreme Court takes up a challenge to the subsidies provided to help individuals buy insurance through the federally operated exchange. Despite the case’s legally frivolous premise, it’s entirely possible the partisan Republican majority on the court will gut the law by striking down the subsidies, setting up another titanic political battle over health care. Having Republicans like Ted Cruz liken gutting Obamacare to gutting net neutrality probably suits the White House just fine, too.

Alas for Tom Wheeler, Obama is not doing his hand-picked FCC chairman any favors by openly politicizing the net neutrality issue. Whatever technocratic bona fides Wheeler may have hoped to claim for the agency’s eventual decision are now likely to be swept away in the coming partisan warfare, in ways that could threaten the agency’s long-term independence and authority.

Obama may get his “strongest possible rules”, but the FCC might not survive the birth.