The FCC has received more than 3 million comments on Commissioner Tom Wheeler’s controversial plan to rethink net neutrality. If the last couple of million comments are anything like the first 1.1 million, 99 percent of commenters were strongly in favor of protecting net neutrality. They include startups, small businesses, artists, and small- and medium-size broadband providers, among many others.
One comment was missing, though—President Obama’s. While President Obama campaigned heavily on net neutrality and recently reiterated his support for it, he hasn’t filed a thing to the FCC. The president has alluded to the FCC being an independent agency, and therefore suggested he should not publicly encourage the commission to fulfill his campaign promises. Yet since becoming president, his Executive Branch has submitted more than 200 filings to the FCC in over 80 proceedings. (If you want proof, see this spreadsheet.)
If the administration were to file comments, it might come through a White House office, such as the National Economic Council or the Office of Science & Technology Policy, or the Commerce Department’s National Telecommunications and Information Administration (NTIA). In 2009, the NTIA submitted comments telling the FCC that the “NTIA expects to offer views on the issues presented in [the network neutrality] rulemaking at the appropriate time.” You would think that we have reached the appropriate time. But President Obama has stood largely silent while his FCC chairman, Tom Wheeler, barrels toward dismantling an open Internet and threatening the entire economy that now rides atop it.
The president should advocate for strong net neutrality rules under something called “Title II” of the Communications Act. Title II is simply the necessary legal basis for net neutrality, as all network neutrality champions have acknowledged, and the only way the FCC could effectuate the president’s vision, according to the judges who struck down the FCC’s last rule. It’s the only approach that would accomplish the president’s stated vision of ensuring we don’t have “differentiation in how accessible the internet is to different users.”
Indeed, even George W. Bush’s Department of Defense supported Title II. When the FCC was considering reclassifying phone companies to Title I, Secretary of Defense Donald Rumsfeld filed with the FCC in to say National Security and Emergency Preparedness “communication functions will be best served if the provisioning of broadband Internet access over wireline facilities remains classified as a ‘telecommunication service’ that can be regulated by the Commission under Title II of the Act.”
Obama has proclaimed that he “will take a backseat to no one in my commitment to network neutrality.” By not commenting in the FCC proceeding, the president has taken a back seat to dozens of tech companies, including Etsy, Kickstarter, Vimeo, Reddit, and Tumblr, the AARP, dozens of senators and members of Congress, and millions of people that have strongly filed or commented in favor of real, strong Title II network neutrality. It’s time for that to change.
Disclosure: The author is a lawyer who has advised startups and nonprofits on net neutrality issues.