“It’s disappointing, but not surprising, that the Obama administration continues to disregard the people’s will and push for more mandates on our economy,” Boehner said in a statement.
Calling Title II reclassification “net neutrality regulation” is a little odd, because net neutrality has been a policy goal of the FCC for nearly a decade. But still, the whole episode was tiresome. Net neutrality proponents watched as policy they had long hoped for picked up its most-important advocate ever, and then as the issue accumulated partisan muck.
Which was… a little weird to watch, too. Because net neutrality—even Title II reclassification—has often been endorsed by none other than conservatives.
A poll released by a consortium of pro-net neutrality found that self-identifying conservatives widely support regulation to limit cable companies’s ability to affect the Internet.
Some 83 percent, in fact, of “thought that Congress should take action to ensure that cable companies do not ‘monopolize the Internet’ or ‘reduce the inherent equality of the Internet’ by charging some content companies for speedier access,” reported Haley Edwards at Time.
And in fact, there’s a considerable and straightforward conservative argument for regulating to protect net neutrality. Without net neutrality, Internet providers can charge a toll to companies or make them pay more to have access to an “Internet fast lane.” Giant tech firms, able to pay the toll, could then provide services that newer startups couldn’t, and giant companies would have a leg up on more nimble competitors.
The competition that has made the American technology sector possible, in other words, would calcify.
Regulating for net neutrality protects small business without imposing demands on it. Making net neutrality the law, in fact, would just preserve the regulatory scheme as it’s essentially been over the last couple decades.
So far, so straightforward.
But looking at the legal record makes this recent conservative shift issue even odder. The only time net neutrality regulation went to the U.S. Supreme Court, it had no greater ally than one Justice Antonin Scalia.
In 2005, the Supreme Court ruled on Brand X. In the early days of the web, many companies sold customers access to the Internet over another company’s phone wires. Brand X wanted to do the same over cable broadband wires—but the FCC had decided a few years before that cable Internet, unlike the dial-up web connection which Brand X was selling, wasn’t a utility.
The Brand X trial turned on something weird. Congress had defined just what a telecommunications utility was in the Telecommunications Act of 1996—the same law which empowered the FCC to regulate the industry. All the justices agreed that, per Congress’s definition, cable broadband worked more like a utility than anything else. But all of the justices agreed, too, that Congress’s definition was a little unclear.