Kevin Wolf, AP Images for Avaaz
FILE- Avaaz joins with other US advocacy groups to deliver more than a million signatures for a free and democratic internet to the FCC in Washington using a giant digital counter on Thursday, Jan. 30, 2014.
Obama's surprise effort to prescribe Depression-era regulations means that Net Neutrality may join the Affordable Care Act and immigration reform as recurring conflicts between the executive and legislative branches next year.

When it comes to the Internet, everyone wants to be for innovation. The problem is that one side of the debate — President Obama's side — wants to use a pretty blunt government regulation to spur entrepreneurship.

Obama said Monday the independent Federal Communications Commission should, in the name of defending the principle of Net Neutrality, change current rules and treat Internet Service Providers like it used to treat common-carrier telephone companies.

Putting ISPs under Title II of the Communications Act of 1934, said Obama, "is a basic acknowledgment of the services ISPs provide to American homes and businesses, and the straightforward obligations necessary to ensure the network works for everyone — not just one or two companies."

Sen. Ted Cruz, R-Texas, reacted to Obama's surprise announcement with this Tweet: "'Net Neutrality' is Obamacare for the Internet; the Internet should not operate at the speed of government."

And the Washington Post's Brian Fung said why Cruz was right: "Both have been subject to extensive litigation. Both attempt to address what many perceive to be a market failure… By adopting a legally complex regulatory proposal… That could be more easily solved with a simpler (but politically controversial) solution."

Obama's surprise effort to prescribe Depression-era regulations means that Net Neutrality may join the Affordable Care Act and immigration reform as recurring conflicts between the executive and legislative branches next year.

Most unfortunate of all, this political controversy doesn't need to be. There is already a proposal on the table that nearly everyone — if they were to stop and take a breath — could endorse. And that very proposal is authored by FCC Chairman Tom Wheeler, President Obama's hand-picked chairman!

Let's go back a few years to understand what's going on here. From the 1910s to the 1980s, AT&T dominated American telecommunications. Its prices and its manner of interconnecting was regulated under Title II. The better solution to monopoly regulation was an 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 and set rules in the early 1990s for auctioning off airwaves for wireless cellular services.

Technology has transformed this regulatory hodgepodge. Congress, the FCC and the courts have spent two decades trying to make sense of laws written for technologies that have converged.

One noble effort to rationalize the law was the 1996 Telecom Act. It changed rules between cable companies, local telephone companies and long-distance carriers. But it pre-dated the biggest change: The Internet. Today, the Internet is the one and only data pipe necessary for voice, web, video and other broadband services.

When you ask techies for the keys to the Internet's success, you get two answers. The Internet works so well because government regulates it so little. And the Internet flourishes because an ethos of open access to web sites and services. Entrepreneurs call this "permissionless innovation."

What happens if an Internet Service Provider blocks consumer access to a web site or web service in favor of a sweetheart deal between the ISP and a competing web service? That's the way the cable television business has always operated.

Yet for whatever reason, the Internet didn't develop that way. ISPs blocking access to competing web services has happened so rarely that it's hard to characterize this as any kind of problem. On those few occasions when it has happened, the FCC shut them down on the grounds of anti-competitive behavior.

Then in 2005, the FCC put forward a set of Net Neutrality principles to preemptively ban such practices. That became a full-fledged regulation in 2010 under the former agency chairman.

That rule wasn't overly burdensome, and it seemed to work just fine. Then Verizon Communications sued. In January, the D.C. Circuit Court of Appeals agreed with Verizon. It struck down the rules, but said that the FCC could try again.

That's what Tom Wheeler has been busy doing this past year. He put forward a nuanced and workable solution that preserved Net Neutrality rules under provisions of the 1996 Telecom Act.

Those who believe that the FCC can wave a magic wand and change decades of history without congressional approval should look again at the D.C. Circuit's opinion from January: "We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers."

There’s a better way to solve this conflict. President Obama should give the FCC a chance to follow the law. If it can’t do that, and if the people of this country really want stronger regulations to enforce Net Neutrality principles, then Congress needs to change the law.

Drew Clark can be reached via email:, or on Twitter @drewclark, or at