Having Lost on Net Neutrality, Republicans Offer a Deal

Now that advocates have won, will they surrender some of their gains to make sure their victory lasts?

Demonstrators for net neutrality rallied outside a Democratic fund-raiser in 2014. (Jonathan Alcom/Reuters)

When the FCC delivered a clear victory to advocates for net neutrality by announcing that it would treat the Internet as a common carrier, congressional Republicans reacted furiously. Speaker John Boehner denounced "overzealous government bureaucrats" for developing "a secret plan to put the federal government in control of the Internet." Senator Marco Rubio said the move "threatened to over-regulate the Internet." Other GOP lawmakers questioned whether President Obama had interfered with an independent regulator, since he had put out a statement endorsing net neutrality just a few months earlier. (At the time, Senator Ted Cruz compared the proposal to "Obamacare for the Internet.")

Yet nearly a month later, GOP lawmakers remain divided over how to respond; one proposal would explicitly block the agency's change through a "resolution of disapproval," while another would actually cut the FCC's budget and rein in some of its authority. Court challenges to the ruling are considered inevitable, and Republicans grilled FCC Chairman Tom Wheeler in a trio of hearings this week on Capitol Hill.

The most interesting possibility, however, is a bipartisan compromise that, according to its supporters, would legally bar the broadband industry from segmenting the Internet into "fast lanes" and "slow lanes" while also returning the web to its status as a communications service, not a common carrier, as it was for a dozen years before the FCC announced its change. While the difference may seem like a technicality, it has taken on great significance for activists concerned that powerful firms like AT&T, Verizon, or Comcast could block content based on their business interests, or favor one company over another by providing faster or slower loading speeds over its broadband network (streaming Netflix is a frequently-cited example of something that could be affected).

Proposing the new bill are some of the same senior Republicans—Senator John Thune and Representatives Greg Walden and Fred Upton—who long opposed the very concept of net neutrality but who have changed course as advocates for Internet freedom have gained momentum over the last year.

In many respects, the proposal is precisely what Democrats had wanted for years—before the FCC went even further than activists believed it ever would. Republicans "have moved a great distance toward the Democratic position," said former Representative Rick Boucher, a Virginia Democrat who served as chairman of the House subcommittee on communications and the Internet. Boucher is now a partner in a D.C. law firm that represents telecom firms. He said the political dynamic surrounding net neutrality presents "a unique opportunity" for Congress to act, because following the FCC decision, "Republicans and Democrats have equal leverage."

The GOP is ready to compromise on the basic principle of net neutrality, while Democrats, Boucher argued, should have an incentive to deal, since the FCC policy isn't a permanent change in law. "The Democrats' temporary victory could be washed away in the next presidential election," he warned. (If elected, a Republican president would make at least one new appointment to the FCC early in his or her term.)

But would Democrats really trade away the change in classification (explained in detail by my colleague Robinson Meyer last month), which net neutrality advocates view as crucial to the FCC decision? A few senior lawmakers have said they'll talk about it, but activists hope the negotiations won't go far. "The absolute best thing Congress could do," said Evan Greer, the campaign director for Fight for the Future, "is not get in the way."

Sascha Meinrath, the director of X-Lab, described the Republican proposal as "a Hail Mary that is almost certain to fail." Even if Congress could pass a proposal addressing net neutrality, he said, the probable result would be a "contorted bill that would most likely be vetoed." Meinrath voiced confidence that challenges to the FCC decision would also fail in the courts, citing Supreme Court decisions that call for deference to the "expert agency." (Interestingly, it is this same precedent that Democrats hope will save Obamacare subsidies from being invalidated by the high court.)

The battle between telecommunications companies and Internet freedom activists has long been portrayed as a David vs. Goliath struggle, and indeed, a big part of the GOP shift on net neutrality is a response to pressure from the powerful interests who are tired of fighting and simply want the issue resolved. As Thune, the chairman of the Senate Commerce Committee, wrote in an emailed response to questions on Friday: "The GOP readiness to settle the issue with legislation has been driven by an emerging consensus in the private sector that certain fundamental protections for consumers can create valuable certainty for both Internet service providers and content creators.”

Meinrath put it another way: "About the only thing private industry hates more than change," he said, "is more change." For the same reason, he's dismissive of the warnings that if a Republican president changes the composition of the FCC, net neutrality will be in danger. "Once people realize the sky didn't fall, the Internet didn't explode," the new classification—which is the same classification the Internet had before 2002—will stick. It's a potentially risky bet. But as net neutrality advocates savor an unlikely victory, it's one that most of them are willing to make.