Net Neutrality Looks Dead in the Clutches of Congress

By Wayne Rash  |  Posted 2010-06-13

Net Neutrality Looks Dead in the Clutches of Congress

WASHINGTON-In May the backers of net neutrality rules thought they'd finally found salvation. After being told by a federal appeals court that the agency didn't have the authority to regulate broadband communications, the Federal Communications Commission announced that it would reclassify broadband as a telephone service, which it could regulate.

Unfortunately, later in the month, a majority of members of Congress on both sides of the aisle told the agency that it should not move forward with reclassification without consulting Congress.

You'd think that being told "No" by both the courts and the Congress would halt the FCC in its tracks. But that hasn't actually happened. The FCC announced in early June that it will put its ideas before the public in a June 17 hearing. There, the FCC said it will ask whether it should keep existing laws and policies in place, reclassify Internet carriers under Title II, like phone companies, or find a "third way." At this point, it's not totally clear what that third way might be, but considering the current mood at the FCC to regulate Internet carriers, it will probably involve a new classification.

Right now, however, the FCC is in a holding pattern in its efforts to regulate the Internet or to provide consumer protections beyond the already limited scope provided under current laws. While the commission is looking for some means of accomplishing its end within the constraints of current law and current court rulings, the Internet carriers have launched a full offensive, lobbying Congress for all they're worth to prevent any changes that would impose more regulations.

The result is that for the time being at least, net neutrality is a dead issue. It's possible that the commission may attempt to defy the concerns expressed by Congress, but in Washington that's a sure way to end the careers for the people responsible. The commission may try its third way when it figures out what it is, but Comcast and the other carriers who sued the commission the last time have already said they'd do it again if the commission tried to pull a fast one.

Like it or not, Congress is going to insist that it, not the FCC, is the entity that decides communications policy in the United States. Despite the fact that the commission could conceivably find a way to exert some level of regulation over the Internet, it would be political suicide to do so.

By now you've heard enough from all sides of this issue to simply wish it would all go away. Everyone claims to be in favor of net neutrality, but only if it's defined their way. Meanwhile, all sides are also spreading FUD throughout the land, which will work to paralyze any fast action in Congress.

Elections Will Keep Net Neutrality on Back Burner


This, of course, assumes that Congress is disposed to fast action, which it's not. The August recess is drawing near, members of the House are all up for re-election, and the Senate has a Supreme Court nominee to confirm. Any kind of communications law change is pretty far down the priority list.

The November elections, meanwhile, may seal the fate of net neutrality legislation, even if it were to get written and introduced into committee this late in the session. Members won't be around to deal with the bill if it were to appear because they'll be off running for election. After November, the political landscape will change. Even if the Republicans don't take control of the House and Senate, they'll certainly gain influence, and the GOP isn't in favor of net neutrality as the FCC currently envisions it.

If the Republicans do gain a majority in either house after November, then net neutrality is dead. If they don't, it's still dead because the Democrats will be focusing on their core legislative efforts so they can claim at least some accomplishments in time for the presidential election. Nobody on the Democratic side of the aisle wants to introduce uncertainty into what is likely to be a very difficult presidential election.

The bottom line is that any net neutrality legislation is basically dead, at least in the form of a bill formally setting communications policy in place. It's possible that someone could insert language supporting the FCC's efforts into some other bill, and that it would make it through the conference committee and into law, but it's a very long shot.

It's also possible that the FCC will try to force the issue, but that seems unlikely. According to Bruce Mehlman of the Internet Innovation Alliance, an anti-net neutrality group, the FCC and its Chairman Julius Genachowski likely will bow to the wishes of Congress and wait until enabling legislation can be enacted. Despite the leanings of Mehlman's group, he's probably right.

The reality is that the FCC took its best shot at exerting authority over the Internet and lost big. Right now, if Comcast wants to limit you from using file sharing software, it can. It can even make Google off limits, slow YouTube to a trickle, and prevent you from watching shows on network sites such as Hulu instead of its own sites for which it can charge.

There is, of course, one other hope, which is competition. As other carriers enter areas previously monopolized by Comcast and other companies, customers will have an incentive to move to an Internet service with more flexible rules. The growth of 4G wireless and WiMax services will have the same effect. So while the government has failed in its attempt-at least for now-to regulate the Internet, the free market may make it happen. Just don't expect it to happen overnight.

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