On Tuesday, a three-judge panel of the D.C. Circuit Court of Appeals upheld Obama administration net neutrality regulations. The rules treat all providers of internet service — cable, telecom and wireless — as common carriers subject to utility-style regulation.
What happens next will be either a parable of democratic action or a parable of the inertia of bureaucratic central government.
The ruling was an unqualified success for the administration and for its assertive Federal Communications Commission. On a 3-2 vote in February 2015, the FCC ordered a complete overhaul of the nation's communications landscape. Naturally, the Internet Service Providers (ISPs) challenged the FCC order.
As someone intimately familiar with decade-old politics of net neutrality — including the emergence of the concept at the FCC in 2004 — I have very mixed feelings about Tuesday's decision.
Like the vast majority of Americans, I don't want my ISP blocking or degrading my ability to access the websites or internet content of my choosing. But giving the FCC sweeping regulatory power over the internet industry has some drawbacks, too.
Critics of the decision — pretty much everyone in the telecommunications industry except Google and other providers of internet content — are now talking about two opportunities for recourse. One is an appeal to higher courts. They could appeal to the entire D.C. Circuit. That would buy them time until there are nine justices on the Supreme Court to potentially order a redo.
The other, more promising path would have them turn to the legislative branch. They could prod Congress into speaking more directly about whether and how to regulate the internet.
How did we get to a world where five unelected FCC commissioners determine the very fate of our most important means of communication?
I recounted some of this history in a previous column: For many decades AT&T dominated American telecommunications. Its prices and its manner of interconnecting was regulated under Title II of the 1934 Communications Act. The better alternative to monopoly regulation was the antitrust lawsuit by the Department of Justice that led to the breakup of "Ma Bell" in 1982.
Other titles of the Communications Act dealt with other technologies. Title III governed the frequencies used by radio broadcasters and television stations. Other sections regulated cable TV and satellites.
But technology has transformed this regulatory hodgepodge. And Congress, the FCC and the courts (primarily the D.C. Circuit, which has jurisdiction over most FCC decisions) have spent two decades trying to make sense of laws written for technologies that have converged.
It’s true that some technologies are faster than others. But ultimately, the consumer doesn't care whether their internet services come over fiber, co-axial cables or wirelessly.
Congress' last major effort to rationalize the law took place in an election year. Indeed, the 1996 Telecom Act emerged as a futuristic bipartisan talking point, heralding the prospect of an era of good feelings, at least when it came to technology policy. In an elaborate ceremony, Clinton physically and digitally "signed" the legislation at the Library of Congress.
Certainly the 1996 law dodged many central questions. It left those to be sorted out by its "expert agency," the FCC. But at least it took a stand on the basic framework of communications. It changed rules between cable companies, local telephone companies and long-distance carriers, and let each of them compete in the others' marketplace.
Hence competition has been, and continues to be, a universally acclaimed truth of public policy. It is supported by Democrats, by Republicans and by independents.
But now we're at the point, under the otherwise remarkably tech-savvy Obama administration, where bipartisanship on communications policy is gone. Democrats see the need to regulate the internet by making all broadband providers "common carriers." Republicans don't want ISPs to block internet content, but are skeptical that the best solution is to make ISPs public utilities.
After all, one of the very reasons conservatives supported the pro-competition policies of the 1996 act was to limit the size and scope of federal government regulation — to get the government out of the business of continually monitoring telecom giants.
Why is an appeal unlikely to succeed? Many observers — myself included — saw the courts being more sympathetic to the communications industry. It is because the legal standard used by the appeals court defers to an administrative agency when the agency acts based on an unclear law of Congress.
The fast-moving nature of advancing technologies has allowed Obama to overturn prior FCC policies that had been agreed to by both the Clinton and George W. Bush administrations.
The timeframe for legislation this Congress is indeed short. But I believe that the net neutrality decision will set up a long-term incentive for Congress in coming years to revisit the regulatory structure of our nation's communications infrastructure.
Drew Clark is of counsel at the law firm of Best Best and Krieger, where he focuses on technology, media and telecommunications. Connect on Twitter @drewclark via email at drewclark@bbklaw.com.