Last week, while speaking at a Los Angeles town hall meeting, President Obama reaffirmed his “unequivocal support” for network neutrality. Network neutrality is the principle that phone and cable companies shouldn’t create an unequal Web—one with new Internet “slow lanes” for (almost all) websites and special fast lanes sold to billion-dollar giants like Facebook and Apple.
Network neutrality is also something that Obama’s controversial appointee to head the Federal Communications Commission—Tom Wheeler—proposed, in May, to end. That was when Wheeler issued one of American history’s more unpopular legal proposals, which would give cable and phone companies substantial room to discriminate among websites, cut exclusive deals, and to impose new tolls on sites. Since proposing to radically change the Internet status quo, Wheeler has been the target of two viral John Oliver features, has inspired almost 4 million comments to the FCC (a record) nearly unanimously opposed to his proposal, inspired grass-roots organizations and giant companies to unite in a display evoking Lex Luthor and Superman joining forces, and has received criticism for being a former cable lobbyist even by fellow Democrats running in competitive elections. Everyone’s guess for a future presidential candidate—Hillary Clinton—has reiterated her longtime support for network neutrality. And Obama is also distancing himself from the toxic proposal, including in his statement last week.
While many observers realized the obvious importance of last week’s comments—Obama disagrees with Wheeler’s proposal—few understood just how severe and clear the disagreement was. By presidential standards, it was an epic smack-down.
Obama distanced himself from his controversial chairman when he said:
[The FCC] came out with some preliminary rules that I think the Netroots and a lot of folks in favor of net neutrality were concerned with. 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.
Notice the framing: Obama doesn’t for a second suggest that “the Netroots and lots of folks” were mistaken about Wheeler’s proposal. When he references a hypothetical phone call, it doesn’t sound like he wants to cheer Wheeler on. Instead, he effectively apologizes that he can’t tell Wheeler “exactly what to do.” Nonetheless, Obama sternly reiterated, without picking up the phone, that he and the White House “expect whatever final rules to emerge to make sure that we’re not creating two or three or four tiers of Internet.” Since that statement, the White House tweeted the answer and even emailed it to thousands of Americans who signed up for updates at Whitehouse.gov.
While Wheeler has tried to downplay disagreements with the president, the differences of opinion are real. Wheeler’s rhetoric has been confusing in general—leading famously to two directly contradictory headlines (in the New York Times and Washington Post, no less) the day his proposal was released. While Wheeler loudly claimed to oppose those same fast lanes and slow lanes, his actual legal proposal would in fact permit fast lanes and slow lanes—including exclusive deals between a cable company and a website. We shouldn’t let these rhetorical games fool us; the proof is in his actual 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. That’s something I’m opposed. I was opposed to it when I ran. I continue to be opposed to it now.
Obama’s answer reflected eight years of support, dating back to a podcast in 2006, in which he criticized letting a “corporate duopoly” of phone and cable companies “act as gatekeepers,” “dictate the future of the Internet,” and create “high-speed lanes” and relegate the rest of us “to the slow lanes.”
In August, after Obama made a similar pro-network neutrality comment against Internet “differentiation,” a reporter asked Wheeler whether Obama was calling for a “ban on paid prioritization.” Wheeler had a different formulation than a ban: The FCC chairman opposed paid prioritization only if that prioritization “hurts consumers, hurts innovation, hurts competition, degrades service” (see minute 83:40 on). That is not the same thing as what Obama believes. Under Obama’s rule, a startup knows that its giant competitor can’t leave it in the slow lane. Under Wheeler’s rule, cable and phone companies can cut almost any deal they want, and the startup would have to hire lawyers and economists to fight the giant companies’ legal armies and prove to the FCC that their competitor’s deal “hurts consumers” and “competition.” It’s a world of difference, a default yes, not a default no.
To be clear, there are three disagreements. Obama is saying no to fast lanes. Wheeler’s proposal would say yes to them. Second, Obama is saying yes to clear, simple rules without loopholes, while Wheeler calls for confusing legal presumptions against some or all fast lanes and vague standards regarding consumers’ harm. In law, a bright-line ban and convoluted legal loopholes and presumptions mean different things or outcomes. Third, Obama opposes what he calls “more exclusive” deals—meaning he is definitely opposed to the purely exclusive deals Wheeler would permit.
If you’ve followed the network neutrality debate, you’ve noticed a lot of discussion of which legal authority the FCC should use to adopt its rule. That might sound tedious, but the FCC has lost two major network neutrality cases in the courts for pointing at the wrong basis of authority. In January, in the second of these cases, the judges upheld just about everything the FCC did—except for the authority it chose. So, for obvious reasons, the key question remaining would be authority.
If you pointed to the First Amendment for your right to bear arms, and the Second Amendment for freedom of speech, you would lose in court. The same way, the FCC has to point to the right legal basis to win in court. Here the FCC will point either to “Section 706” or “Title II.” The FCC has already pointed to Section 706 in two previous cases—despite the calls of law professors and consumer groups. It lost them both, as predicted.
Section 706 empowers the FCC to adopt rules to encourage a “virtuous circle” of investment and innovation in Internet networks; that’s good, except the court provided one exception. Under 706, the FCC cannot ban online discrimination or new, variable charges on websites—even if the ban promotes the virtuous circle. The January decision could not have been clearer: The FCC can rely on Title II and ban fast lanes and new tolls … or it can rely on Section 706 and therefore authorize “fast lane Internet service” (second to last page), tons of discrimination and new fees, and harm startups, nonprofits, and small businesses. Banning online discrimination and new tolls requires not 706 but Title II as the authority.
Wheeler is pretending that Section 706 can get the job done—mainly because phone and cable companies oppose Title II politically, for the obvious reason that they oppose network neutrality and have spent hundreds of millions fighting it over a decade. In response to Obama’s August statements, Wheeler said “anything that interferes with the virtuous cycle [of innovation] is something that can and should be prohibited” and, in his opinion, some prioritization “interferes with the virtuous circle.” What Wheeler doesn’t say is what the courts have already said: Anything “that interferes with the virtuous cycle” except discrimination and tolls can be prohibited under 706. Title II is needed to ban paid prioritization—which is what the president “expects” his chairman to do. Indeed, Obama’s White House staff updated their answer to We the People Petition—asking him to support Title II—with a video of Obama’s town hall comments.
Disclosure: The author is a lawyer who has advised startups and nonprofits on net neutrality issues.
This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.