Markey’s strategy in Washington

Keep pressure on president and hope for the best

IT WAS A COLD February 5 when Ed Markey took the stage in the Radio and TV Gallery of the US Capitol. There were only a few reporters there to hear him but Markey, a long-time Malden congressman and now Massachusetts’s junior senator, was feeling jubilant. Earlier that day, Tom Wheeler, the chairman of the Federal Communications Commission, an agency that regulates telecommunications, had announced that the commission would assert authority to regulate the Internet under an 81-year-old law it uses to regulate landline phone companies. The agency’s first move would be to ban Internet service providers such as Verizon and Comcast from charging content companies (such as Netflix or Facebook) higher rates to move their Web pages to consumers more quickly or seamlessly than other content.

Proponents such as Markey believe so-called net neutrality will ensure the Internet remains a place where startup companies can thrive. Markey proclaimed it “Internet innovation and freedom day” and no wonder: For the past decade, he has been the principal proponent in Congress of requiring Internet providers to adhere to this principle. He says Wheeler’s move was “as important as keeping our air and water clean and our roads and highways safe.”

As a Democratic senator in a Republican Congress marked by its lack of bipartisan cooperation, Markey was powerless to implement it. But the path net neutrality took, from a technical issue that even Democrats weren’t sure about to one that President Obama himself championed, demonstrates how members of the minority party in Congress can, sometimes, remain effective. It’s an important lesson for the Massachusetts delegation, which has not a single Republican in its ranks and still faces at least 20 more months in the political wilderness.

The lesson is to keep pressure on Obama to do what you want him to do, and then hope that he’ll make use of his executive authority. That’s what happened in the case of net neutrality, and Markey now hopes it will lead to further regulatory action, to increase competition among Internet service providers, to extend broadband service to rural areas, and to reduce prices in cities.

A year ago, it would have been impossible to predict Wheeler’s move. Coming off a bruising battle with Verizon in which a federal appeals court ruled that the FCC could not mandate net neutrality without first asserting regulatory authority over the Internet, Wheeler was seeking a compromise.

He proposed a rule that would have allowed Internet service providers to charge content creators to deliver their Web pages more quickly, but set some limits on when and how they could do it. He did not assert any broader authority to regulate the Web. But before implementing the rule, Wheeler asked the public to weigh in. Spurred by interest groups and by Markey himself, 4 million people did. Ninety-nine percent favored stricter net neutrality rules.

Then, in November, Obama spoke up, calling for the stricter rules. That was certainly not a given. Democrats have long been divided on the issue. As early as 2006, Markey sponsored legislation to mandate net neutrality but he couldn’t even get it out of committee. Several Democrats joined Republicans in voting no. He did no better when Democrats ruled Congress from 2007 through 2010. Obama, who could have then pressed the FCC to establish rules, did nothing.

If it’s easy for Americans to feel they cannot make a difference in Washington, the case of net neutrality provides a counterexample, says Josh Silver, the founder of Free Press, a Northampton-based advocacy group that helped lead the grassroots campaign to sway Wheeler. Markey’s support for that campaign gave it an official imprimatur that helped, says Silver:  “At every turn, Ed has been there calling for net neutrality and more competition. He is one of the rare, real public interest advocates in Congress.”

Adds Michael Copps, a former FCC commissioner who is now an adviser to the open-government advocacy group Common Cause: “Markey has been sounding the trumpet and leading the way.”  Besieged by Markey and his allies, Wheeler, a former lobbyist for the very industry he now regulates, fell into line. With the stroke of a pen, he achieved with executive power what Markey had struggled for years to do with legislation.

It wasn’t always that way. In 1996, Republicans and Democrats, led by Markey, worked together on the first major rewrite of the country’s telecommunications laws in 62 years. Wheeler based his regulatory move, in part, on authority the law granted the commission to ensure that “advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion” and, if not, to “take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”

Republicans say it’s a stretch to assume the breadth of power Wheeler has from the language in the law. But they are as unlikely to be able to overturn the rules as Markey was to enact them in law. So the next big challenge for net neutrality will come in court this year when Internet service providers file suit. They say the rule is not only illegal, but will add new regulatory costs that will slow the deployment of faster broadband services.
If the rule holds up, Markey says, net neutrality will be a boon to Massachusetts’ high-tech startups, which need to be able to assure venture capitalists that they will be able to economically deliver their products to Web surfers. “It’s hard for a newer company to successfully convince venture capitalists to give them capital if they cannot convince them that there is going to be guaranteed access to their consumers,” he says.

The rule is also important, so far as Markey and his allies are concerned, because it will ensure that political activists aren’t censored if their views conflict with those of an Internet service provider. There’s evidence this has occurred. In 2007, Verizon shut off a text-messaging program used by the abortion rights group NARAL Pro-Choice America, saying it was controversial and might offend some Verizon customers.

Meanwhile, Markey is hopeful that some of those startups net neutrality will protect are looking at ways to deliver access to the Web itself more cheaply, forcing the incumbent service providers to keep their prices in check or improve their offerings. We need to “expand consumer choice and introduce Darwinian, paranoia-inducing competition,” he says.

Numerous studies show that the United States lags behind developed countries in Europe and Asia in deploying the fastest broadband services, prompting the FCC in January to declare the lack of speed, officially, a problem. Seventeen percent of Americans don’t have access to high-speed Internet at all, the commission found in its 2015 Broadband Progress Report. Even among those who do, many don’t subscribe, preferring slower, lower-cost options.

One way to speed broadband’s rollout may be to encourage cities and towns to establish their own networks, but 19 states—not including Massachusetts—have laws on the books restricting their ability to do so, on the grounds that such plans unfairly compete with the private-sector Internet service providers. In January, Markey introduced a bill that would overturn the state laws.

In the Republican Congress, Markey’s bill doesn’t stand a chance. But Markey, again, may get the last laugh. Wheeler is encouraging localities that want to offer public broadband, but can’t because of state laws, to petition him. The FCC, under the 1996 communications law, has the power to overrule the state laws. Earlier this year, it did so for the first time, preempting laws in Tennessee and North Carolina to allow municipalities there to offer Internet service.

The success, or lack thereof, of such initiatives could affect whether Massachusetts cities offer their own broadband networks. Cambridge officials, frustrated by high Comcast prices, are looking at the issue. “If the city of Cambridge, home to MIT and Harvard, doesn’t have the majority of homes connected to FiOS in 2015, then we have an indication we have a problem,” says Sasha Costanza-Chock, an assistant professor of civic media at MIT, referencing the best high-speed broadband on the market.
Such networks needn’t be limited to big cities. This month, the town of Leverett, just north of Amherst, is planning to begin offering broadband to its 1,900 residents.

Markey and the FCC will face a fight, however. The Internet service providers aren’t alone in opposing municipal broadband systems. The National Governors Association, the lobbying arm of the 50 governors in Washington, and the National Conference of State Legislatures oppose federal preemption of state laws on states’-rights grounds.

The big Internet service providers are pledging to fight, too, arguing that they are looking out for public officials’ best interest. “While government-run networks may be appropriate in rare cases, many such enterprises have ended up in failure, saddling taxpayers with significant long-term financial liabilities,” says Michael Powell, a former FCC chairman under President George W. Bush and the current president of the National Cable & Telecommunications Association.

Meet the Author

Shawn Zeller

Washington Correspondent
Wheeler, more than Markey, will be in the spotlight, as the fight goes on. But Markey says he’s continuing to employ the tactics that helped with net neutrality, speaking out, encouraging activists, and getting them to bombard Washington regulators with letters. Winning without getting any credit isn’t ideal for a politician, especially one who has, as Markey says, dedicated 39 years in Washington to telecommunications policy. But he’s willing to keep at it and hope that the advocacy formula that worked for net neutrality will work again for municipal broadband. The activists, he says, created “the atmospherics where Chairman Wheeler and Barack Obama could come out in favor.”