Michael Copps, the most outspoken advocate for net neutrality on the Federal Communications Commission, knows he’s in for an uphill battle.
“I think there are powerful players that are opposed to it, that are in a position to make their influence felt,” the commissioner said in an interview with Bill Moyers set to air tonight. “None of these things are going to come easy. None of this stuff gets solved without taking on a fight. Government doesn’t work that way.”
Efforts at the FCC to hold broadband service providers accountable for their network-management policies were dealt a major setback earlier this month at the hands of a federal appeals court. In that ruling, a panel of judges unanimously struck down the FCC’s legal theory supporting Internet regulation, leaving the commission at a crossroads as it embarks on the ambitious agenda laid out in its national broadband plan.
The court’s decision was a victory for cable and telecom providers that resisted efforts by the commission to tighten regulatory oversight of the broadband sector. But to Copps and other left-leaning members of the debate, the ruling simply repudiated the nebulous policies of the Bush-era FCC and made plain the necessity of reclassifying broadband as a so-called Title II regulated telecommunications service.
For Copps, the question of the openness of the Internet is a larger media issue. A longtime advocate of media diversity and opponent of consolidation, Copps looks to the Internet as the heir apparent to broadcast and print media, carrying in tow the same public-interest obligations that could be at odds with the economic motives of the service providers.
“This is a tough question for America right now,” he said. “Here you’ve got this dynamic technology that thrives on openness, that thrives on innovation and all that, and you don’t want to regulate or artificially limit it. But at the end of the day, if that’s where everything is moving, if that’s where our national dialogue—our civic dialogue—is moving, if that’s how we’re going to educate ourselves, there is a public interest component to that.”
Copps so far is the only commissioner who has spoken out in favor of reclassifying broadband as a regulated Title II service. The other two Democrats on the commission, Mignon Clyburn and Chairman Julius Genachowski, both supporters of net neutrality, have been more guarded in their remarks about the court’s decision, saying only that it invalidated the legal theory of the previous commission.
Genachowski has said that much of the FCC’s work implementing the recommendations laid out in the broadband plan will not be affected by the court’s ruling, though he has said that the commission’s lawyers will evaluate each policy proposal in light of the decision to ensure a “solid legal foundation.”
Genachowski has reiterated his commitment to net neutrality principals, though he has not said how he plans to move forward with the rulemaking proceeding he initiated in October.
Any effort to reclassify broadband or enact net neutrality rules can be expected to face vigorous opposition from the Republican side of the commission. Commissioner Robert McDowell recently penned a guest column in The Washington Post titled “Hands off the Internet”, in which he argued that the broadband sector has thrived under an unregulated framework, and that imposing net neutrality or other obligations on service providers would curtail investment and stifle the Internet economy.
As a practical matter, the FCC’s options in response to the recent court ruling are few. A legal appeal—either to the full Circuit Court or the Supreme Court—faces long odds.
A move to reclassify broadband as a Title II service would draw staunch opposition from the industry, and has indeed already set in motion a preemptive wave of lobbying against any such proposal. Alternately, the FCC could continue with its net neutrality rulemaking proceeding under its existing legal framework, though critics will argue that it lacks the authority to do so in light of the court’s ruling.
Many members of Congress have interpreted the court’s ruling as a sign that communications law needs to be updated to clarify the FCC’s role in the broadband sector. But a legislative push to strengthen the FCC’s authority would run into opposition from the same factions that warn against any regulatory encroachment into the broadband market and have defeated net neutrality legislation in past Congresses.