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If Congress wants new Net Neutrality rules, Congress should say so

Commentary: Outgoing Rep. Henry Waxman has flip-flopped, now urging the FCC to take extreme action on its own. It's an unfortunate twist in the on-again, off-again fight.

Passions run high when it comes to proposals about the open (or less than open) Internet, as in this protest outside FCC headquarters in May 2014. Alex Wong, Getty Images

On Friday, Rep. Henry Waxman, ranking member of the US House Energy and Commerce Committee, sent a 15-page letter to FCC Chairman Tom Wheeler detailing a legally complicated new approach for resolving the noisy controversy over the agency's pending proposal to adopt new Net neutrality rules.

Until now, Waxman believed the best solution for protecting the Open Internet was for Congress to grant the Federal Communications Commission new oversight over broadband providers. Several bills that would do that, including some written or endorsed by Waxman, have been introduced over the last decade, most recently in June.

But in a dramatic about-face, Waxman, a Democrat from California who is not running for re-election, is now urging the agency to take extreme action on its own. If adopted and upheld over likely legal challenges, Waxman's proposal (PDF) would give the agency an end run around limits on its authority set by Congress at the dawn of the commercial Internet, moving far toward transforming private ISPs into utility companies subject to government control.

The Internet: a public utility?

Waxman's flip-flop is the latest unfortunate twist in the on-again, off-again fight over regulatory limits on the network management practices of broadband ISPs.

The FCC's newest proposal, made public in May, represents the third attempt by the agency in the last decade to develop what the agency and Waxman call "prophylactic" rules to protect the Internet from potentially harmful future practices.

Without such rules, advocates claim, ISPs may someday abandon principles of network neutrality, which in general hold that ISPs should not block lawful content or discriminate in delivering packets to consumers for anticompetitive reasons.

But the debate has been hampered by changing definitions and demands, leaving the term increasingly abstract and divorced from actual network design and engineering. As even the most ardent advocates are forced to admit, broadband networks utilize dozens of essential but non-neutral techniques for optimizing performance, including content delivery networks, co-located servers, and prioritizing voice and video traffic over less time-sensitive content.

Even without FCC action, most of the potential practices that seem to motivate neutrality activists are already illegal under existing antitrust and anticompetition laws. That is why the Internet remains an open platform for service providers and users, despite the lack of FCC rules.

That reality is no accident. The agency's previous two efforts, including a year-long exercise in rulemaking that consumed the FCC in 2010, have been rejected by the courts for exceeding the agency's very limited jurisdiction over the Internet under the 1996 Communications Act. Passed by a bipartisan Congress during the Clinton Administration, the largely hands-off approach of the '96 Act is widely seen as laying the foundation for US dominance in development of the commercial Internet.

But Waxman is now urging the FCC to ignore the law and undertake a complicated and legally uncertain "hybrid approach" to evade the limits on its authority set by Congress.

First, Waxman recommends that Wheeler begin the process of "reclassifying" the Internet as a public utility telephone service under Title II of the existing law.

Title II dates back to 1934, initially written to oversee the government-sanctioned monopoly of the former Bell telephone system. It includes provisions that require FCC and state utility commission permission to set or change rates, introduce new services, and even to modify or retire obsolete equipment.

Given the dangerous mismatch between the old law and the fast-changing reality of broadband Internet (PDF), Waxman also recommends that the agency undertake even more fragile proceedings to undo or "forbear" from applying the most inapt and anachronistic provisions of Title II.

Then, in a final bit of legal judo, he urges the agency to invoke existing powers the court recognized earlier this year under another part of the law, Section 706, to reinstate the 2010 version of the FCC's prophylactic rules.

Legal gymnastics to avoid an inconvenient reality

Waxman refers to his approach as a "hybrid" legal solution because it grounds new Open Internet rules in both Section 706, which the court recognized, and Title II, which the agency has long disavowed as a source of authority for broadband regulation, including in a 2005 case that it won at the US Supreme Court.

"A hybrid approach," Waxman's letter concludes, "avoids putting vitally important open Internet protections in jeopardy through legal gymnastics."

But protracted and painfully contorted "legal gymnastics" are precisely what Waxman and others, including non-neutral parties such as Netflix and Mozilla, are assuring for the FCC should Wheeler proceed with Waxman's or other proposed "hybrid" solutions.

These proposals, which pick and choose incompatible dollops of legal authority from different parts of the Communications Act, would at best give the agency broadband oversight built on a foundation of quicksand.

That's not surprising. Clearing away the twisted rhetoric, the bottom line is that the FCC's authority to regulate the Internet is attenuated at best. No matter how proponents of a more interventionist role for the agency try to wriggle out of it, the real challenge for new FCC rules is that Congress wisely decided long ago that the agency and its state counterparts were a poor fit for fast-evolving and unpredictable new technologies and the applications they spawn.

Majorities of both Republican and Democratic lawmakers, along with former FCC chairmen of both parties, have long understood that the kind of slow-moving, deliberative proceedings that federal agencies are required to conduct are simply incompatible with the accelerating pace of technological disruption embodied by the Internet.

If Waxman and other members of Congress truly believe the Open Internet requires protections from future ISP practices that could harm it, the safe, simple, and constitutionally mandated solution would be for Congress to grant the agency the authority to proceed clearly and quickly.

Lessons from Waxman's earlier efforts

But don't take my word for it. Just ask Waxman himself.

In late 2010, as the FCC's previous Open Internet proceeding was sinking into the regulatory tar pits, Waxman drafted and circulated a simple, straightforward bill (PDF) that created legally enforceable Net Neutrality rules and granted the agency specific authority to enforce them.

Rep. Henry Waxman is urging the FCC to undertake a complicated "hybrid approach" on Net neutrality to evade the limits on its authority set by Congress.

Waxman's bill was largely based on a joint legislative framework proposed earlier in 2010 by Google and Verizon in an effort to end counterproductive and ill-informed public squabbling that had grown out of hand.

The three-page proposal was clear and to the point, giving the FCC and its proregulatory allies precisely what they were hoping to achieve in the doomed rulemaking. It prohibited ISPs from blocking access to legal content and from discriminating against some content in favor of others for purposes other than reasonable network management. And it required detailed disclosure of just what those practices were so the FCC and consumer advocates could evaluate them for potential abuses.

Had the Waxman bill passed, it would have ended the FCC's Net Neutrality contortions once and for all.

Yet Waxman's bill was never even introduced into committee.

As I reported here at the time, Waxman's diplomatic solution to the FCC's growing paralysis was shot down by inside-the-beltway extremist groups who preferred legally indefensible rules from the FCC to any kind of legislative solution.

Why? The extremists -- then and now -- didn't want the FCC to get the authority it needed to protect the Open Internet because protecting the Open Internet was never their goal. For over a decade, Net Neutrality has simply been the most media-friendly shorthand they could find for their true agenda, which is to transform the Internet into a public utility regulated by state and federal agencies -- if not to nationalize it outright.

Waxman's proposed bill effectively called their bluff, and was treated as a betrayal.

Duly chastened, Waxman abandoned his efforts to broker a stable and legislated compromise. The FCC proceeding limped to the finish line, with the agency's three Democratic commissioners voting to approve the 2010 order just a few days before Christmas, knowing full well that it would almost certainly fall to legal challenges from both sides of the fight--which is what happened.

Neutrality proponents don't want rules

There was one silver lining, though, for the FCC. In rejecting much of the 2010 order, the 2014 court decision responded favorably to the agency's argument that it had found previously unused legal authority over broadband in Section 706 of the 1996 Act, which encourages the FCC to promote deployment of "advanced communications capabilities."

Wheeler read the opinion as an invitation for the FCC to try again, using Section 706 to re-enact the 2010 rules using slightly different language.

It was an offer the chairman indicated he was eager to act on.

"I intend to accept that invitation," Wheeler said at the time, "by proposing rules that will meet the court's test for preventing improper blocking of and discrimination among Internet traffic, ensuring genuine transparency in how Internet Service Providers manage traffic, and enhancing competition."

Which is precisely what he proposed a few months later.

But the absolutists and their sponsors still don't want clear, enforceable rules. Much as they scuttled Waxman's 2010 legislative effort, the same forces have aligned to twist and misrepresent Wheeler's 2014 proposal in pursuit of their true goal -- undoing deregulatory Clinton-era policies that midwifed the Internet revolution and gave US companies the competitive edge in capturing much of its value.

Now, explicitly, they are demanding the FCC ignore the court's finding on Section 706 and, come hell or high water, turn broadband Internet access into a public utility as an end in itself. They want Title II, and always have -- not to protect or promote the Open Internet., but to end private investment and operation of the broadband infrastructure -- copper, cable, fiber, satellite and cellular.

The folly of that campaign should be clear enough on its face. Public utilities are a regulatory solution of last resort, freezing providers into mature infrastructure and removing incentives to innovate with new products, services, or technologies.

When was the last time your electricity or water provider increased capacity by an order of magnitude? Does your gas company even maintain its pipes safely, let alone replace them with better and cheaper equipment as soon as it becomes available?

Thanks instead to a light-touch regulatory environment, we've moved from 2400-baud dialup to increasingly fast broadband, and from pagers to LTE mobile services in less than two decades,

At the same time, we've also moved far -- too far -- from a reasoned debate about network management, and about low-risk solutions to shoring up the FCC's broadband authority.

Indeed, Waxman's letter makes no reference to any proposed legislative solutions, including his own.

Which is too bad. If additional Open Internet rules are truly needed, now or in the future, they should and likely must come from Congress. And they should be tailored to address genuine problems, not hidden and self-interested agendas.

Waxman had the right idea in 2010. As he prepares to retire after a long and distinguished career in Congress, maybe he should have a heart-to-heart ... with Rep. Waxman.