Michael Botein, professor of law at New York Law School and a former senior attorney-advisor in the FCC's Cable Television Bureau, noted that the president can’t officially order an independent agency such as the FCC to issue policy. But he wondered if Obama’s comments were an attempt to push the commission to act more quickly.
“I think it’s fair to say that one possibility was that this was designed to goose the FCC, but if so, why do it in such a public way?” Botein said. “Normally you just call the chairman in. There are a lot of unanswered questions here.”
Obama declared his support for an open Internet, calling it "essential to the American economy and increasingly to our very way of life." He pushed the FCC to "answer the call of almost 4 million public comments, and implement the strongest possible rules to protect net neutrality."
FCC Chairman Tom Wheeler replied with his own statement on Monday, thanking Obama for his thoughts and agreeing with him on opposition to Internet “fast lanes” that would prioritize paid content over the Web. But Botein felt the separate statements may be an indicator of confusion between the White House and the commission.
“It almost sounds like Obama did this, and then sent a note to Wheeler to say, ‘Oh by the way, we’ve taken this position,’” Botein said. “So I am not sure there’s a lot of coordination going on.”
Christopher Mitchell, director of the Telecommunications as Commons Initiative at the Institute for Local Self-Reliance, and an advocate for improved Internet access, wasn’t sure how Obama’s words will impact the commission’s decision. But he felt the president should be taking a stronger lead on the issue.
“I think the president is trying to provide cover for the FCC to take the necessary steps to protect the open Internet despite incredibly strong opposition from the cable/telephone companies and their proxies,” Mitchell said.
Regulatory Questions
Obama’s statement advocates for the FCC to reclassify consumer broadband service under Title II of the Telecommunications Act of 1934 – a move supported by most net neutrality supporters as it's generally thought that such a move would prevent Internet “fast lanes.”Wheeler’s statement explained that the commission was currently looking at hybrid approaches, combining elements of Title II and Section 706 of the Telecommunications Act of 1996, which some feel give the FCC broad discretion to regulate in the public interest. But if the president’s words are indeed a veiled push to speed the decision-making process, it doesn’t appear that the FCC is going to budge.
“The more deeply we examined the issues around the various legal options, the more it has become plain that there is more work to do,” Wheeler said. “The reclassification and hybrid approaches before us raise substantive legal questions. We found we would need more time to examine these to ensure that whatever approach is taken, it can withstand any legal challenges it may face.”
The FCC conducted a final Open Internet Roundtable on Oct. 7 that focused on theories of legal authority and the basis for the construction of open Internet rules. But there’s no timetable for the commission to release its final rulemaking on the issue.
