Technology|Obama's Call for Net Neutrality Sets Up Fight Over Rules
WASHINGTON - When President Obama argued on Monday for rules to protect an open Internet, he said the regulations should be strong.
Just not too strong.
Where the line would be drawn remains somewhat unclear, though the implications could be major. Under the guidelines suggested by Mr. Obama, broadband Internet service would be treated as a utility by the Federal Communications Commission, similar to traditional phone service.
But many of the rules that regulate utilities, born of an earlier era, should be ignored, Mr. Obama said. In particular, he said, the government should not try to regulate or dictate the prices that broadband companies charge for their services.
To accomplish that, the F.C.C., if it adopts Mr. Obama's suggestion, would have to specify the elements of the law that should be ignored - a concept known as forbearance.
'Forbearance is a very broad grant of power to the F.C.C. by Congress,' said Blair Levin, a communications and society fellow at the Aspen Institute and a former chief of staff at the F.C.C. 'It's a way to simultaneously tell the F.C.C. what to do but also give the commission power over time to adjust its rules as markets shift.'
Virtually everyone agrees that some of the rules written to regulate monopoly telephone service should not be applied to 21st-century Internet service, but there are almost certain to be big disagreements in the months ahead about what rules survive.
Those fights could easily bog down any open Internet rules proposed by Tom Wheeler, chairman of the F.C.C. And on Tuesday, the issue of forbearance drew sharply contrasting opinions from supporters and opponents of Mr. Obama's action.
Mr. Obama has urged the F.C.C., an independent agency, to reclassify broadband from the light-touch regulatory category where it has been since 2002 and put it into a category that calls for more utility-like regulation.
'The time has come for the F.C.C. to recognize that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do,' Mr. Obama said.
But critics of the proposal say regulating Internet service like a utility, without subjecting it to the same aggressive oversight of industries like electricity or water, will be a tough balancing act for the commission.
'Forbearance is a fig leaf here, especially when it comes to big issues like rate regulation,' said Michael Mandel, chief economic strategist at the Progressive Policy Institute, which dislikes the prospect of treating broadband like a utility. 'The F.C.C. can forbear easily from day-to-day rate decisions. But I don't see how they can stay out of that when there are big innovative leaps.'
Mr. Mandel pointed to the introduction of the iPhone as an example. When that device was released, AT&T needed to develop a new type of data service package to charge consumers who wanted to use the iPhone's ability to connect to the Internet.
Any common carrier, as AT&T and other wireless providers would be considered under Mr. Obama's plan, would need the F.C.C. to first approve such a new type of charge. Even if the commission said it did not want to rule on how much AT&T could charge, a consumer could petition the agency, arguing that its duty as a regulator is to determine how those data charges should be structured.
But supporters of Mr. Obama's plan say that the rhetoric about classifying broadband as a utility, putting it under the regulations of Title II of the Communications Act, has been overblown.
'I think it's a red herring to assume that you have to import all of the regulations that exist for the telephone and apply them to the Internet,' said Corynne McSherry, intellectual property director at the Electronic Frontier Foundation, a civil liberties advocacy group. 'No one is really pushing for that, and no one thinks that should happen.'
Other opponents of Mr. Obama's proposal said that it injected politics into what should be a nonpartisan agency process.
'I think at this point Chairman Wheeler is in a very tough position,' said Jeffrey Eisenach, director of the Center for Internet, Communications and Technology Policy at the American Enterprise Institute, a conservative research group. 'If the F.C.C. follows the president's recommendation, it will always reek of politics, and nobody will get it off of them.'
Then there will be the inevitable lawsuits - perhaps some on the issue of forbearance - which would drag the F.C.C. back into court, where it has previously lost twice in its attempts to enforce net neutrality. AT&T, for one, said if the F.C.C. began treating broadband as a utility, it would take the agency to court.
'We know from past history and the record in this proceeding,' said James Assey, an executive vice president at the National Cable and Telecommunications Association, the cable industry's trade group, 'that all of this is going to be litigated.'