President Obama recently said he is "unequivocally committed" to net neutrality. Back in 2007, candidate Obama pledged that he would take a "backseat to no one" on the issue. But on a key issue in the debate, the White House has thus far kept quiet.
The Federal Communications Commission is considering new rules for net neutrality, including a stronger option that advocates say is essential to preserving an open Internet. And while Obama lacks the authority to compel the FCC to put a particular policy in place, a public endorsement of the toughest option would put considerable pressure on the commission.
Instead, Obama has avoided taking a position on the most controversial piece of the net-neutrality debate: what authority the FCC should use to enact new open-Internet regulations.
Internet activists argue that the only way to enforce real net neutrality is to first reclassify broadband Internet as a "telecommunications service" under Title II of the Communications Act. The activists claim that the legal maneuver, which would grant the FCC sweeping new powers, is necessary to enact rules that can hold up in court.
Broadband providers and Republicans, however, are fiercely opposed to that option, warning it would strangle the industry's growth with outdated, utility-style regulations. They have threatened a legal and political war with the Obama administration if it invokes the provision, which the FCC currently uses to regulate landline phone companies.
By staying quiet, Obama is avoiding a politically explosive issue, but he's also removing himself from the most critical part of the net-neutrality fight. "I think Obama has to say 'Title II' or otherwise he's avoiding the key question," said Marvin Ammori, a consultant for tech companies and a net-neutrality advocate.
The FCC is an independent agency, so Chairman Tom Wheeler and the four other commissioners don't necessarily have to obey any directives from Obama. But the agency's three Democrats are all loyal to the president, and it's unlikely that they would buck him on a high-profile issue.
Internet activists want net-neutrality regulations that bar Internet providers from charging websites for faster service. They warn that allowing "fast lanes" would distort the Internet to favor the largest corporations at the expense of average users.
Net-neutrality skeptics, however, argue that overly restrictive regulations could prevent Internet providers from experimenting with new business models that could mean lower prices and better service for customers.
The FCC enacted rules in 2010 that banned "unreasonable" discrimination of Internet traffic, but a federal court struck them down earlier this year. Wheeler and the other commissioners are now trying to rewrite the rules in a way that can survive future court challenges.
Wheeler unveiled an initial proposal in May that would stop Internet providers from blocking websites, but the plan sparked a massive backlash because it would allow for Internet fast lanes in at least some cases.
Obama has been clear that he doesn't want to allow paid prioritization of Internet traffic. When he was asked about the issue in Los Angeles earlier this month, he said he is opposed to "the notion that somehow some folks can pay a little more money and get better service, more exclusive access to customers through the Internet."
But the president has also been careful to keep some distance from the controversy by noting that the FCC is an independent agency.
"My appointee, Tom Wheeler, knows my position," Obama said. "Now that he's there, I can't just call him up and tell him exactly what to do."
It may be inappropriate for Obama to order the FCC to take a specific action. But the administration can—and frequently does—provide its views to the FCC.
The National Telecommunications and Information Administration, an agency within the Commerce Department, is tasked with providing the FCC with the administration's official position on issues. This year, for example, NTIA filed a letter with the FCC warning about potential wireless interference issues and another seeking to ensure that federal agencies have access to enough airwaves.
The Justice Department's Antitrust Division also provides input to the FCC on issues that affect competition in the communications and media industries. Net neutrality, which has broad implications for the future of Internet providers and Web companies, could certainly fall under that category.
The FCC received a record 3.7 million comments on its initial net-neutrality proposal this year—but none of them were from any federal agency.
Obama will probably never give a speech about particular sections of the Communications Act. But the administration could easily file a formal comment outlining what authority it thinks the FCC should use to protect net neutrality.
Wheeler has claimed that he and Obama agree on net neutrality. But advocates say the FCC chief needs to commit to banning all pay-for-priority Internet traffic deals to really be on the same page as the president.
Michael Weinberg, a vice president with the consumer advocacy group Public Knowledge, said he would be ecstatic if Obama came out in full support of Title II regulation of the Internet.
But he also said it's legitimate for Obama to respect the FCC's status as an independent agency and that the president has already been plenty clear about his position.
The only way to ban fast lanes, as Obama has said he wants to do, is to use Title II, according to Weinberg.
"I don't think there's any question at the FCC where President Obama stands on this," Weinberg said. "It's time to turn that into rules."
This article is from the archive of our partner National Journal.
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