D.C. Kabuki Theater Feature: "Democrats Want Net Neutrality."
On December 13, 2017, the Federal Communications Commission, an agency established under "Old Democrat" Franklin D. Roosevelt, voted to repeal the net neutrality rules that the FCC had adopted during the administration of New Democrat Barack H. Obama. Now, Congressional Democrats are proceeding with a resolution under a statute that allows Congress to reverse a ruling of a federal agency, such as the FCC, with "only" a majority vote--if done within sixty days. As Democrats knew very well before formulating word one of their resolution, the resolution will fail because Republicans hold majorities in both houses of Congress. Nonetheless, headline after headline (published by people who also know better) asserts that Senate Democrats have a plan to save net neutrality. Welcome to D.C. Kabuki Theater. Tickets are far from free, but the good news is that the price of admission is included in your federal taxes and fees!
As male lead of D.C. Kabuki Theater's production of Democrats Want Net Neutrality, Democrats cast Massachusetts Senator Edward J. Markey, who has been in one House or another of Congress since 1976. Recently emoting to net neutrality advocates outside the Capitol Building, Markey called out dramatically, "Whose side are you on? Do you stand with the big-money corporate interests and their army of lobbyists?” Of course, Markey's call and response effort was, at best, "irony adjacent:" Democrats make big donors and lobbyists "super delegates;" and multi-millionaire Democrat Hillary Clinton's recent Presidential campaign cost well over 1.2 billion dollars, much of it collected from "big money corporate interests" (not counting either "soft" or "dark" money).
Theater investors, aka "angels" Big political donors don't care about Kabuki Theater legislation designed only to make politicians on "the other side" look bad, with no chance in the heavens of becoming law. So, the Democrats' theater prop of a resolution stands to gain the admiration of members of the audience in the cheap seats without alienating the angels--a dream scene for Democratic actors. But, bottom line, Trump undid yet another good deed of Obama's, right? Weeeelllll, yes and no. Pulling the curtain aside to reveal machinations audiences were never intended to grok is rarely easy or quick, but here goes:
This paragraph is THE key to understanding this particular plot: If the FCC seeks to regulate an industry heavily, such as by requiring net neutrality, the FCC must first classify members of that industry as "Common Carriers." However, initially, the FCC classified broadband providers as "Providers of Information Services," rather than as "Telecommunications Providers," Telecommunications Providers being among the groups already classified by the FCC as "Common Carriers." Nonetheless, at any time, the FCC could have reclassified broadband providers as Telecommunications Providers/Common Carriers: As a 2005 Supreme Court case states, courts defer to the FCC's classification of broadband providers because the statute is ambiguous on that point.
Coincidentally, also in 2005, a unanimous FCC policy statement endorsed net neutrality principles that Republican FCC chairs had articulated. Those supporting net neutrality included public interest groups; venture capitalists; wireless carriers, such as Sprint; a coalition including Google and Twitter; "edge providers," such as Amazon (Prime); and others. Predictably, dominant internet service providers, such as Comcast and Verizon, opposed net neutrality. In 2008, responding to complaints from consumers, the FCC ordered Comcast to cease slowing a specific kind of internet service. One could say that the FCC required net neutrality of Comcast. Comcast sued the FCC, claiming that the FCC lacked power to issue the order. The FCC claimed it had "ancillary authority."
While Comcast v. FCC was making its way through the "swift" U.S. justice system, Democratic President Barack H. Obama, whose campaign promises had included net neutrality, took office. Serving as acting chair for the first six months of the Obama administration was FCC Commissioner, Michael Copps, a vigorous advocate of net neutrality who was eminently qualified to chair the FCC--had anyone wanted an FCC chair who balanced industry interests with the public interest. However, Obama's nominee for FCC chair was Julius Genachowski, a "revolving door" Clintonite who had been, among other things, the executive responsible for creating the Fox Broadcasting Company. Supposedly, both Genachowski and Obama were pro net neutrality. (From where I sit in D.C. Kabuki Theater, nominating Genachowski instead of Copps or another more balanced chair was Act One of Democrats Want Net Neutrality.)
The U.S Circuit Court of Appeals for the D.C. Circuit decides FCC appeals. In an opinion dated April 6, 2010, that Court held for Comcast. The opinion, however, distinguished clearly between the FCC's ineffective attempt to assert "ancillary jurisdiction" and the FCC's legal ability to regulate Common Carriers heavily. FCC Commissioner and former Acting Chair Copps quickly and publicly urged immediate reclassification of broadband providers. However, as a 2010 article written about the Comcast decision noted: "The FCC has intentionally kept its authority over broadband vague, in hopes that looser regulation might spur growth in the market for Internet services." (emphasis added). Another alleged potential disadvantage of classifying internet providers as Common Carriers was "stifling investment."
By 2010, how much incentive for growth or investment did the US "market for internet services" really need? At that point, even the Unabomber would have demanded wifi access at his forest cabin. (Too soon?) Besides, the FCC has a statutory duty to consumers, not only to industries. In May, 2010, Genachowski, ignoring the very broad hint given the FCC by the Comcast Court, instituted a costly, time-consuming, rule-making process to impose net neutrality rules on all broadband providers without also using that same rule-making process to reclassify broadband providers as Telecommunications Providers/Common Carriers! Did Genachowski, a cum laude graduate of Harvard Law School, somehow believe that the same Court that had not allowed the FCC to require net neutrality of Comcast without re-classification would allow the FCC to impose net neutrality rules on the entire broadband industry without re-classification? Or was this "fore-doomed" rule-making process Act Two of Democrats Want Net Neutrality?
In any event, in December, 2010, the FCC jaw-droppingly adopted new rules without reclassifying broadband providers as Telecommunications Providers/Common Carriers. Before long, a major broadband provider (Verizon) sued the FCC, a move that should not have surprised even the most clueless student at the worst law school in the U.S. Of course, Verizon's suit, filed in September, 2011, cited, among other cases, Comcast v. FCC.
Also in 2011, Obama nominated as FCC Commissioner Ajit Pai, whose c.v. was similar to that of Genachowski--revolving door user, connected to the Clinton administration, telecommunications lobbyist, etc. (Act Three). BTW, Comcast complied with the FCC's order despite winning the lawsuit it claimed to have filed only "to clear its good name." However, by the time the 2010 decision in Comcast v. FCC came down, Comcast was eyeing a merger that needed FCC approval. Approval came in 2011, with only Copps voting against Comcast (citing public interest). At the end of that same year, Copps, who is currently a special adviser to the Media and Democracy Reform Initiative at Common Cause, left the FCC. On May 12, 2012, the U.S. Senate confirmed Ajit Pai (whom Senator McConnell had recommended to Obama in the first instance).
In March 2013, while the Verizon suit was still pending, Genachowski announced that he would be leaving the FCC (for the Carlyle Group). To replace him, Obama nominated Thomas Edgar Wheeler, a venture capitalist and lobbyist for the cable and wireless industry, who had been, among other things, President of the National Cable & Telecommunications Association and CEO of the Cellular Telecommunications & Internet Association (Act Four). Wheeler took office in November, 2013. For the FCC's legal department, Wheeler hired lawyers who had worked for internet providers and had opposed net neutrality while in the private sector (Act Five). Meanwhile, the FCC was not re-classifying broadband providers and Capitol Hill Democrats were not complaining.
January 2014 saw the decision in the Verizon case. In the very first sentence of its opinion, the Verizon Court noted that it had decided the very same issue only four years earlier, in the Comcast case, a theme on which the Court dwelt during the first part of its opinion. (To me, the Court's annoyance with the FCC seemed palpable.) Surprising no one, the Court found for Verizon, repeating that, in order to require net neutrality of broadband providers, the FCC would have had to re-classify broadband providers as Common Carriers. Soon after the decision, former Commissioner Copps wrote a post entitled The Buck Stops With the FCC. His post stated, among other things, that the FCC had the power to re-classify broadband providers as Common Carriers without any additional legislation and should do so ASAP. Copps' post also urged public activism and included a sample internet petition.
On February 19, 2014, FCC Chair Wheeler issued a statement about the Verizon case, saying that the FCC would be promulgating new rules allowing broadband providers to "tier" services by offering "fast lanes." By putting discussion of the Verizon decision in the same announcement as the new rules, Wheeler's statement left many with the false impression that the Verizon decision required this move, or, at a minimum, precluded net neutrality (Act Six). The statement prompted an avalanche of articles by net neutrality advocates criticizing Wheeler, Obama and/or the FCC.
On April 23, 2014, Wheeler issued another statement, saying that critics had misunderstood the proposed rules, but that the FCC would not be promulgating them after all. However, Wheeler's statement said nothing about re-classification. The very next day, an article by internet expert, Columbia Law professor and former FCC advisor Tim Wu entitled The End of Net Neutrality appeared in a post at The New Yorker. Wu accused President Obama of having broken firm campaign promises about net neutrality. Objections from consumers, from owners of web sites and many others proliferated. (Inexplicably, in his form response to consumers, Wheeler spoke of tiered services and internet neutrality as though the two were not inconsistent with each other.)
At this point, Obama (a Columbia U. graduate) was in his second term as President, was over three years into a Republican vow to block his every move, and was looking toward 2014 mid-terms after two elections that had been disastrous for Democrats at every level but his own, and was also looking toward his legacy (after a less than stellar launch of Obamacare). In February 2015, the FCC finally reclassified broadband providers as Common Carriers, as it should have done years earlier. At no time prior to 2015 had Democrats on Capitol Hill, as a group, advocated for re-classification of broadband providers.
Less than two years after re-classification, Trump was inaugurated President. Consistent with tradition, Wheeler, resigned from the FCC, to be succeeded as FCC Chair by his fellow Obama FCC nominee, Ajit Pai. And, currently playing in D.C. Kabuki Theater is Act Seven of Democrats Want Net Neutrality, starring Senator Markey (whom I do respect for his environmental advocacy). And, that brings this essay full circle. Ironically, Wheeler will likely go down in history as pro net neutrality, along with fellow kabuki stars, Obama, Genachowski, Markey and the rest of the current Democratic Congressional contingent.