Net neutrality, considered a centerpiece initiative for FCC chair Julius Genachowski, would effectively stop Internet providers from slowing
or blocking access to Web sites. It’s among the most important political topics that most net-heads don’t understand. And the debate’s just been reignited: Yesterday Genachowski revealed plans to reclassify
broadband lines so that they are governed by the same rules as traditional phone networks, which the FCC has legal authority over–creating a loophole large enough to push through net neutrality
rules on ISPs. So what happens next?
The Federal Communications Commission may not have the authority to
regulate broadband access. A federal appeals court
decision in April ruled against the FCC’s attempt to impose
regulations that would force Internet service provider (ISPs) like
AT&T and Comcast to treat all Web traffic equally, regardless of the
content accessed or level
of consumption. This new debate on the FCC’s authority will center around the legal hurdles of reclassifying Internet access under Title II of the 1996 Telecommunications Act.
2002, the FCC under the Bush administration deregulated high-speed broadband networks under the Act, freeing service providers from the restraints facing telcom
companies. Professor of law at University of Michigan, Susan Crawford, recently
called this a “radical move,” arguing that the FCC had initially hoped deregulation would spur greater competition in the market, “but a wave of mergers
instead reduced it,” she said. “Prices stayed high and speeds slow. And eventually the carriers started saying that they wanted to be gatekeepers — creating
fast lanes for some Web sites and applications and slow lanes for others.”
While Crawford believes that the FCC has the legal authority to re-regulate ISPs by changing its classification, some say the process is
full of legal landmines. “Any effort to ‘reclassify’ broadband without Congressional
action would be met with vigorous legal challenges every step of the way,” contends Larry Downes, a fellow at Standford Law School Center for Internet &
Society, who believes applying existing regulations on Internet lines owned by telecoms would have unintended consequences. “Nothing in the Communications Act gives the FCC authority to decide on its own what is and what is not a telecommunications service. Congress already made that decision. That broadband Internet is an unregulated ‘information service’ is already long-settled law, law made concrete by the FCC itself.”
Outside of legal repercussions, such reclassification would also face serious political oppositions, analysts argue. Since Genachowski is an Obama
appointee, such a fight to bring potentially broad-ranging rules to the Internet could be seen as another case of government over-regulation, which
Republicans might use as political fodder in the upcoming mid-term elections.
And it didn’t take long for the political opposition to start. Using “outdated
monopoly telephone rules is a major mistake,” Senator John Ensign (R-NV) said in an email today. “The government has taken over a lot of industries just this year, and the last thing that our
economy needs right now is for the government to take over the Internet, too.”
Democrats on the other hand have indicated support for increased agency power. Senator John Kerry argued that the Genachowski “has chosen a measured middle
path and I support it.” Representatives Henry Waxman and John Rockefeller also expressed support for the direction.
Considering the issues of legal authority and a potential effort for large-scale lobbying opposition, one has to wonder if such an issue is even worth the political capital. This will certainly fit in nicely with the “government-takeover”
narrative that plagued the health care debate. Is it worth it to fight for an issue the majority of the public won’t even understand? Clearly, the Obama
administration thought so for health care. But for this? Are the mid-term elections really worth protecting BitTorrent users from ISP throttling?
UPDATE: FCC chair Julius Genachowski said Thursday that the agency has found a compromise in key areas of Internet regulation. “[Genachowski] said this delicate dance will ensure the agency has adequate authority to govern broadband providers without being too ‘heavy-handed,'” AP reports.