So who lost net neutrality? Tasked by President Obama with codifying the principle, the previous chairman of the F.C.C., Julius Genachowski, was cowed, leading to the present debacle. In 2010, the F.C.C. introduced formal net-neutrality rules, in what it called the Open Internet Order. Genachowski, inexcusably, did not use his agency’s main authority over wire communications to enact it. Since its creation, the F.C.C. has had the authority to police all communications by wire in the United States. Instead, Genachowski grounded the rules in what is called—in legal jargon—the agency’s “auxiliary authority.” If the F.C.C. were a battleship, this would be the equivalent of quieting the seventeen-inch-inch guns and relying on the fire hoses.
What could possibly have convinced the agency to pursue a legal strategy that any law student could see was dubious? As in any big mistake, there were compounding errors. Members of Congress threatened to strip the F.C.C. of some of its powers if it enacted the rules with the full weight of its legal authority. (Indeed, Congress tried and failed to overturn the Open Internet Order.) A.T. & T. warned that it would cancel its ongoing effort to become a cable company, threatening to tar the agency with job losses. One senior F.C.C. staffer told me that it would have unduly affected the stock prices of the telecom firms. The agency also had a Kool-Aid-drinking problem; it started to believe its own legal arguments, however weak. Altogether, it was a cowardly reaction to empty political threats.
Tom Wheeler, the new chairman of the F.C.C., now has the unfortunate task of dealing with strategic errors made by his predecessor. Restoring the agency’s long-standing authority over broadband telecommunications is much simpler than it appears. Wheeler needs only to reaffirm that, for Internet firms that want to send information to customers, broadband is a “telecommunications service,” meaning that the F.C.C. has the authority to regulate it. He has both the time and the votes to do so.
It is possible that Wheeler will do nothing, confirming the suspicions of his critics. But it is hard to imagine that he wants to be the man at the helm as the F.C.C. fades, pricing wars break out, and the Internet stagnates into a version of cable television. To be sure, in the short term, one can attract plenty of praise within Washington for not doing one’s job. But Wheeler has been around long enough to understand both the importance of legacy and the judgment of history.
Again, who killed Net Neurality?
As in any big mistake, there were compounding errors. Members of Congress threatened to strip the F.C.C. of some of its powers if it enacted the rules with the full weight of its legal authority.
Thanks again, Congress….