Even Justice Scalia has endorsed treating Internet-service providers as utilities.
Everyone likes the Internet.
While not wholly true, per se, it can sometimes seem this way in national politics. Democrats like tech startups, Republicans like tech startups, everyone likes innovation and entrepreneurship and jobs and, maybe above all, the sense that San Francisco is allowing the U.S. to do something that no other nation can yet do.
So fans of Internet-friendly policies have sometimes (not always) enjoyed a break from the hyperpartisanship which ails nearly every other zone of policy. The protests against SOPA and PIPA were so resounding that the bills were quickly abandoned.
Then this week happened.
On Monday, President Obama announced that he endorsed “Title II reclassification,” a regulatory mouthful but a very important development. Reclassification would let the government treat Internet providers as utilities—like it already treats telephone companies—and enshrine net neutrality as the law of the land. Essentially, that would ensure Internet providers like Comcast and Verizon couldn’t create an “Internet fast lane.”
Republicans on Congress quickly announced their dissatisfaction with the plan. In a tweet, Senator Ted Cruz called it “Obamacare for the Internet.” Speaker John Boehner alleged that any kind of “net neutrality” regulation would hurt private-sector job creation.
“It’s disappointing, but not surprising, that the Obama administration continues to disregard the people’s will and push for more mandates on our economy,” Boehner said in a statement.
Calling Title II reclassification “net neutrality regulation” is a little odd, because net neutrality has been a policy goal of the FCC for nearly a decade. But still, the whole episode was tiresome. Net neutrality proponents watched as policy they had long hoped for picked up its most-important advocate ever, and then as the issue accumulated partisan muck.
Which was… a little weird to watch, too. Because net neutrality—even Title II reclassification—has often been endorsed by none other than conservatives.
A poll released by a consortium of pro-net neutrality found that self-identifying conservatives widely support regulation to limit cable companies’s ability to affect the Internet.
Some 83 percent, in fact, of “thought that Congress should take action to ensure that cable companies do not ‘monopolize the Internet’ or ‘reduce the inherent equality of the Internet’ by charging some content companies for speedier access,” reported Haley Edwards at Time.
And in fact, there’s a considerable and straightforward conservative argument for regulating to protect net neutrality. Without net neutrality, Internet providers can charge a toll to companies or make them pay more to have access to an “Internet fast lane.” Giant tech firms, able to pay the toll, could then provide services that newer startups couldn’t, and giant companies would have a leg up on more nimble competitors.
The competition that has made the American technology sector possible, in other words, would calcify.
Regulating for net neutrality protects small business without imposing demands on it. Making net neutrality the law, in fact, would just preserve the regulatory scheme as it’s essentially been over the last couple decades.
So far, so straightforward.
But looking at the legal record makes this recent conservative shift issue even odder. The only time net neutrality regulation went to the U.S. Supreme Court, it had no greater ally than one Justice Antonin Scalia.
In 2005, the Supreme Court ruled on Brand X. In the early days of the web, many companies sold customers access to the Internet over another company’s phone wires. Brand X wanted to do the same over cable broadband wires—but the FCC had decided a few years before that cable Internet, unlike the dial-up web connection which Brand X was selling, wasn’t a utility.
The Brand X trial turned on something weird. Congress had defined just what a telecommunications utility was in the Telecommunications Act of 1996—the same law which empowered the FCC to regulate the industry. All the justices agreed that, per Congress’s definition, cable broadband worked more like a utility than anything else. But all of the justices agreed, too, that Congress’s definition was a little unclear.
Did the FCC have the right to interpret this “ambiguous” law—the law that permits the FCC to exist—in a way that everyone on the Court thought, well, wasn’t the best?
The Court said yes. “If a statute is ambiguous,” writes Clarence Thomas in the majority opinion, and if the agency’s interpretation of the law is reasonable, then it can act in accordance with that interpretation—“even if the agency’s reading differs from what the court believes is the best statutory interpretation.”
That is: Everyone on the Court thought the FCC’s interpretation of the law was not the best, but six justices thought it was reasonable and could be carried out anyway.
Antonin Scalia disagreed, vehemently.
The case, he wrote, provided “a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions.”
His opinion is a brilliant skewering of the case against Title II reclassification. In 2005 as now, cable companies claimed they didn’t just offer Internet service—which would be regulated as a utility—because they give their customers things like free email accounts. Scalia compares them to a pizzeria that says, “No, we do not offer delivery–but if you order a pizza from us, we’ll bake it for you and then bring it to your house.”
But Scalia’s argument—joined by Justices Ginsburg and Souter—came down to something a little more conservative. Allowing the FCC to interpret its own statute so widely, Scalia argued, was granting it too much deference. The agency exceeded the power granted to it by Congress and upset Constitutional balance. By disregarding its own imperative to regulate cable broadband under Title II, the agency was disrespecting the separation of powers.
For these reasons and more, many conservatives have long supported regulating to protect net neutrality. And perhaps many more would have, too—were it not for Obama’s endorsement of it this week. Then again, perhaps Ted Cruz’s complaint that net neutrality constituted “Obamacare for the Internet” had more truth in it than we know—after all, Obamacare was a historically conservative policy, its constituent policies all popular in the polls, that Congressional Republicans loathe.
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