One last chance to save the Internet — from the FCC

As the Federal Communications Commission readies new net-neutrality rules this week, congressional Democrats face a choice: Should they work with the Republicans who control Congress to help pass new rules, or should they stay on the sidelines and leave the matter to a volatile regulatory process, subject to possible undoing in the courts?

I disagree with neutrality — the idea that everything on the Internet should travel at the same speed, whether it’s the remote monitoring of a cardiac device or a video of a cat. But both critics and advocates of neutrality would likely agree that a new law is the best way to set new policy — not regulatory decrees.

Let’s start with some history. The Communications Act of 1934 says phone companies are like public utilities and should be strongly regulated. But the 1996 Telecommunications Act, championed by President Bill Clinton, labeled the Internet as an “information service” that should be lightly regulated. That seems like a good decision: The Internet has grown spectacularly in this unregulated format.

But last month, Tom Wheeler, chairman of the Federal Communications Commission, proposed treating the Internet like a public utility, run for the public good. He said that the Web should be regulated much like the Ma Bell telephone companies of generations ago. Why this sudden turnaround?

For Wheeler is essentially saying there are only two ways to regulate neutrality on the Internet: redefine the Internet as a telephone-like public utility, or pass a new law.

Wheeler chose regulation. And many Democrats are reportedly saying that they want to wait until the commission issues its new ruling. But congressional Democrats can still choose the other path.

For one, they are in their strongest position to influence legislation. The Republicans are willing to concede the principle of net neutrality to avoid treating the Internet as a utility. The draft legislation now circulating through Congress includes many of the points President Barack Obama has declared a “must,” among them no fast lanes for content; no blocking or throttling information by Internet service providers, and greater transparency in the way networks are managed by their owners. And the legislation would supersede any FCC regulations.

It could be the law of the land tomorrow, period, full stop, with no question of its constitutionality.

And unlike legislation, federal regulations will likely lead to years of lawsuits and appeals and ultimately a possible legal override. Because the courts have already ruled in several cases that they don’t believe the Internet is a utility service — that the broadband Ferrari is not like the Ma Bell Model T.

Second, the political winds inside the Beltway are a fickle thing. By handing over control of net-neutrality issues to the FCC, Democrats are daring a future Republican administration to overturn the commission’s action and return to what was, in fact, a policy begun during the Clinton administration. It’s a bad play: A future Republican president could reasonably claim he or she was merely returning the Internet to a regulatory structure championed by a Democratic administration.

In addition, if the Internet can be regulated like phones were, then why not Google, Facebook and Netflix, which people also use to communicate through services like messaging?  Expanding utility regulations to the Internet opens the door for the regulatory agency to stick its nose into their activities, too.

And what’s perhaps most overlooked is that this form of regulation still allows phone companies to offer different tiers of service, which is exactly what net neutrality — the core principle sought by policymakers — is supposed to prohibit. That’s just another reason why the Wheeler decision to treat the Internet as a utility is so mistaken.

By working with Republican majority to enact a net-neutrality law now, Democrats have an opportunity to set rules for a fair, open and competitive Internet well into the future. Congress can do this in a way that does everything that Obama and the Federal Communications Commission want to do without the risk and delay.

In fact, this neutrality compromise in Congress could be the first step toward a sorely needed bipartisan rewrite of the 1996 Telecommunications Act that would make clear the nation’s policy toward the Internet.

This moment should belong to congressional Democrats — not the Federal Communications Commission.