For his first battle against a Republican-controlled Congress, President Obama has chosen the Internet.
Obama on Monday released an unusual video statement urging the Federal Communications Commission (FCC) to enact the toughest possible rules on Internet service providers, thrilling liberal activists who have long pushed him to take a firmer stand on net neutrality.
“It is a legacy issue both for the White House and for the FCC,” said Nuala O’Connor, the president of the Center for Democracy and Technology and a proponent of strong rules. “I think this is a milestone in a longer journey."
The president’s announcement, coming less than a week after a disastrous midterm election for Democrats, appeared designed to reassure liberal activists that he is stiffening his spine for conflict with the new Republican majority.
“I think he’s signaling to the base of the party that ... he intends to stand up to the new Congress and support policies that the base of the party favors,” said Richard Bennett, a visiting fellow at the conservative American Enterprise Institute.
“He’s going to fight.”
Though centrists such as Sen. Angus KingAngus KingSenate backers of new voting rights bill push for swift passage Stacey Abrams backs Senate Democrats' voting rights compromise NY Democrat tests positive for COVID-19 in latest House breakthrough case MORE (I-Maine) have previously urged the FCC to use so-called “common carrier” regulations for the Internet, the issue has resonated most loudly among Democrats and groups on the left.
Activist groups such as Demand Progress and MoveOn.org helped flood the FCC’s inbox with a record 3.9 million public comments earlier this year after the agency proposed its first overhaul of net neutrality regulations.
Obama had already sided with critics who said the FCC shouldn’t allow the creation of “fast lanes” on the Internet, but his statement Monday ramped up the pressure on the agency to change course.
Berin Szoka, head of the libertarian-leaning TechFreedom think tank, called the announcement “a cynical political ploy” designed to satisfy liberal groups “who have built mailing lists and a political movement on the most absolutist conception of net neutrality.”
Congressional Republicans panned the proposal and promised to stop it in its tracks.
“In the new Congress, Republicans will continue our efforts to stop this misguided scheme to regulate the Internet,” Speaker John BoehnerJohn Andrew BoehnerLobbying world A new kind of hero? Last week's emotional TV may be a sign GOP up in arms over Cheney, Kinzinger MORE (R-Ohio) said.
Sen. Mitch McConnellAddison (Mitch) Mitchell McConnellTrump seeking challenger to McConnell as Senate GOP leader: report Budget chairman: Debt ceiling fight 'a ridiculous position to be in' Buckle up for more Trump, courtesy of the Democratic Party MORE (R-Ky.), who is poised to become Senate leader in January, called the plan “a terrible idea" and said the FCC “would be wise to reject it."
Because Congress controls the FCC’s purse strings, lawmakers could chose to wage a war over the rules when the agency’s funding comes up next year. Lawmakers could also dictate what rules the agency should write through a rewrite of the nation's communications laws.
“I guarantee you that the Republican Congress is not going to just roll over and play dead with a Title II regulation on the Internet,” added Bennett, referring to the portion of the 1996 Telecommunications Act that regulates common carriers.
Though the president’s statement came less than a week after last Tuesday’s midterm elections, the White House may have been eyeing another date on the calendar: Dec. 11.
That’s the day the FCC is supposed to hold its final open meeting of the year, and when it was expected to vote on new net neutrality rules. New regulations would have to be circulated a few weeks before that.
“That means decisions at the FCC about what the order should say are being made now,” said Barbara van Schewick, the director of Stanford Law School's Center for the Internet and Society.
The FCC has been grappling with what to do on net neutrality ever since a court struck down regulations written under the old commissioner, Julius Genachowki, a law school buddy of Obama’s.
Net neutrality — the principal that all traffic on the Internet should be treated the same — was a plank of Obama’s 2008 presidential campaign, and appears to be taking on added significance as he enters the twilight of his term.
Tim Wu, a Columbia University law professor who coined the phrase net neutrality, said Obama realizes he has a few promises to keep before leaving office.
“He’s like: ‘You know what? I said was going to do that: Time to do it.’ ”
In his statement, Obama called on the FCC to reclassify broadband Internet service, a controversial step that would allow the agency to regulate it like a public utility.
Echoing net neutrality advocates, Obama said reclassification is the best way to ensure that companies such as Comcast or Verizon cannot block, slow or otherwise interfere with equal access to the Internet.
"No service should be stuck in a 'slow lane' because it does not pay a fee," Obama said.
The White House was careful to note that the FCC is an independent agency, which means it is not under any obligation to follow or implement Obama’s plan.
But Obama’s statement will have a “huge impact” on the thinking of FCC Chairman Tom Wheeler and the two other Democrats on the commission, according to Marvin Ammori, a top lawyer on Internet policy.
The two Republicans on the FCC are expected to oppose whatever rules Wheeler wants to adopt, meaning that those three Democratic commissioners are, for now, the most important voices when it comes to net neutrality policy.
In recent days, Wheeler was reportedly settling on a “hybrid” proposal that would effectively split Internet service into a back and front end, applying the utility rules for just the service between Internet service providers and websites.
That plan pleased no one, and might have prompted the White House's action.
“The FCC was starting to settle down to a compromise and I think the president had had it with that,” Wu said.
After Obama issued his call for tough rules, Wheeler called for “more time” to examine the various legal issues, indicating that a proposal might not be issued until 2015.
Top cable and telecommunications companies are threatening a lawsuit if the FCC follows Obama’s advice.
“We feel the actions called for by the White House are inconsistent with decades of legal precedent as well as Congressional intent,” AT&T senior executive vice president Jim Cicconi said in a statement on Monday.
“If the FCC puts such rules in place, we would expect to participate in a legal challenge to such action.”