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Obama gives US FCC political cover to regulate broadband

Grant Gross | Nov. 11, 2014
The president's call for reclassification of broadband under telephone-style regulations helps nudge the FCC in that direction.

"The more deeply we examined the issues around the various legal options, the more it has become plain that there is more work to do," Wheeler said. "The reclassification and hybrid approaches before us raise substantive legal questions. We found we would need more time to examine these to ensure that whatever approach is taken, it can withstand any legal challenges it may face."

Reclassification of broadband would almost certainly face a legal challenge. Verizon Communications, which challenged net neutrality rules adopted by the FCC in 2010, said in a statement that reclassification "will likely also face strong legal challenges and would likely not stand up in court."

CCIA's Black discounted threats of a lawsuit. "Everybody assumes somebody's going to sue, no matter what happens," he said. "You might as well do the right thing."

Wheeler's quick response to Obama's proposal suggests some coordination between the White House and the FCC, said Geoffrey Manne, executive director of the International Center for Law and Economics, a free market think tank. "I'd say the fix is absolutely in," he said by email.

Obama's statement may be aimed at the two other Democratic FCC commissioners, in addition to Wheeler, he said. Obama's support for Title II may be a way to tie up support among the Democratic majority at the commission for reclassification, he added.

"Especially with Wheeler's response saying he plans to delay the net neutrality vote ... I think it is now clear that Wheeler has decided to go the Title II route in some form," Manne said. "All that remains is shoring up the votes at the FCC, fending off Congress, and building the record to support reclassification in the inevitable legal challenges that will ensue. The president's statement was aimed at the first two. Now the delay is all about building up the record."

Other FCC observers suggested Obama's statement may put pressure on Wheeler, whose first net neutrality proposal this year would have stopped short of reclassification and allowed broadband providers to engage in "commercially reasonable" traffic management.

The president's statement is a "loud dog whistle of sorts," signaling what he expects the FCC to do, said Mike Wendy, operator of free market telecom blog MediaFreedom.org.

Wheeler has a long history of ties to Obama, including working as a fundraising in the last two presidential elections, added Timothy Karr, senior strategy director at Free Press, a digital rights group in favor of strong net neutrality rules.

"While he technically doesn't answer to the president, it seems impossible for Wheeler to dismiss such a strong statement from the White House," Karr said by email.

Obama's message to the FCC seems to be two fold, Karr said: "One, abandon the hybrid approach and any other concoction that doesn't use the agency's Title II authority to prevent discrimination and blocking of online content. And two, I'm giving you the political cover you'll need to pursue Title II."

 

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