The Federal Communications Commission (FCC) will not be voting on net neutrality in December, instead delaying the decision until sometime in 2015 when Republicans will have full control of Congress. The decision, which the agency confirmed Monday, is drawing criticism from net neutrality supporters, who say the delay is unnecessary and raises concerns about the possibility of FCC Chairman Tom Wheeler bowing to pressure from GOP lawmakers and telecom and cable companies.
Last week, President Barack Obama threw his weight behind a “Title II” proposal to keep the Internet free and fair by treating Web access like a utility, not unlike water. Telecom and cable companies oppose this plan because they want a lighter regulatory touch, and they could benefit by being able to charge companies for faster download speeds, though they have said they will not do this.
Before the president’s statement, Wheeler was reportedly considering a so-called “hybrid” compromise that would allow Internet Service Providers, or ISPs, to charge customers for higher-speed Internet in some circumstances. Wheeler had previously said that he wanted to have net neutrality rules established by the end of 2014.
That has evidently changed. Kim Hart, a spokeswoman for the FCC, told The Huffington Post Monday that an open Internet vote will not be on the agenda for the agency's December meeting, and a timeline for a vote has not been set.
“We need to ensure the record is as strong as possible so that new rules can withstand any legal challenges they may face,” said Hart.
If the FCC follows the president’s recommendations, it is likely the plan will be challenged in court. Still, David Tannenbaum, a former special counsel during the last net neutrality rulemaking in 2010, told The Huffington Post that “the FCC could very quickly write a Title II plan like the kind the president recommended.”
“The FCC has a top-notch staff of lawyers ... I wouldn’t be surprised if drafts of the approach have already been written. And lobbyists have had plenty of time to make their voices heard," said Tannenbaum. “It's a question of what policy to implement, not what law to use or how to write regulations.”
Net neutrality supporters expressed puzzlement that the FCC should need more time to weigh its options, since the idea of treating the Internet like a utility has been around for years. Wheeler has said for months that he has been taking Title II plans under serious consideration.
But Marvin Ammori, a lawyer and Internet policy expert, said the latest delay might indicate just the opposite. "I'm disappointed that they haven't spent as much time thinking about implementing Title II as I believed they were,” he said.
“It's not like Title II is some magical mystery thing,” said Ari Shahdadi, the general counsel for Tumblr. He noted that an alternative approach opposed by net neutrality advocates, which Wheeler was considering, has a much thinner record. “If they're moving so quickly on something that is riskier and untested and they’ve not considered before, what justifies a delay on a proposal that has been around for a really long time?”
“The FCC has adequate evidence to vote on open Internet rules this year,” said Althea Erickson, the public policy director at Etsy.
The delay is likely to help telecom and cable companies, who will have more time to rally support for their position in Congress. The National Cable and Telecommunications Association, which advocates on issues affecting telecom and cable companies, did not comment on the delay. But Brian Dietz, a spokesman for the organization, reiterated that “Title II is unnecessary and burdensome regulation.”
Tannenbaum recalled that during the last round of net neutrality rulemaking in 2010, when a Title II approach was rejected, ISPs put pressure on members of Congress, including lawmakers who were not familiar with the issue but who took campaign funds from those Internet providers.
“That pressure resulted in letters from Congress asking the FCC not to use Title II,” said Tannenbaum. “I am sure the same thing is happening today.”
Ammori also spoke to the influence of politics, saying that “the FCC gains nothing by waiting until next year, other than a lot of political pressure that might slow them down or give them a pretense -- if they're looking for one -- to go back to their pro-carrier proposal.”