On Tuesday, the US Federal Communications Commision announced that it would meet on December 21 to vote on what chairman Julius Genachowski calls "draft rules of the road to preserve the freedom and openness of the Internet."
On Wednesday, the jockeying for position among the Genachowski and the FCC's warring commissioners began in eanest.
In a statement, Genachowski said that his draft rules, circulated to his colleagues Tuesday, would "ensure that the Internet remains a powerful platform for innovation and job creation ... empower consumers and entrepreneurs ... protect free expression ... increase certainty in the marketplace, and spur investment both at the edge and in the core of our broadband networks."
Not so fast, said Republican commissioner Meredith Baker in her canned response. "We do not have authority to act," she wrote.
Insisting that "The new majority of the House Committee on Energy and Commerce has asked the Commission not to circulate this Order," she expressed her opinion that "Whether the Internet should be regulated is a decision best left to the directly elected representatives of the American people."
When appointed by President Obama to the FCC last October, Baker explained her regulatory policy: "I believe that markets work better than government intervention and that competition regulates market behavior more efficiently than regulators can."
Democratic commissioner Michael Copps has a different view. In his Wednesday statement, Copps wrote: "It's no secret that I am looking for the strongest protections we can get to preserve an Open Internet, built on the most secure legal foundation so we don't find ourselves in court every other month."
During the run-up to the December 21 meeting, Copps promised: "I will work tirelessly with stake-holders — including, of course, consumers and Internet innovators — seeking to ensure real network neutrality that protects the online freedom of all Americans."
Copp's pro–net neutrality, pro-regulatory stance is, as he wrote, no secret. In a PBS interview this April with veteran journalist and unabashed progressive Bill Moyers, Copps said in defense of regulation:
I think what history tells us is that, if you're a business, and you have the technical capacity to advance yourself by short changing somebody else, or disadvantaging somebody else and you have a financial incentive to do that, somebody's going to try.
Now, that doesn't mean that I'm here blasting every company or every business executive that's out there. But somebody's going to try. And it's the bad apples that you've got to protect against.
Republican commissioner Robert McDowell couched his objections to the December 21 vote in cloak-and-dagger drama: "Minutes before midnight last night," he wrote on Wednesday, "Chairman Genachowski announced his intent to adopt sweeping regulations of Internet network management at the FCC's open meeting on December 21. I strongly oppose this ill-advised maneuver."
Like Baker, McDowell also prefers that the newly Republicanized Congress handle regulation, and not the FCC: "By choosing this highly interventionist course, the Commission is ignoring the will of the elected representatives of the American people.
"Pushing a small group of hand-picked industry players toward a 'choice' between a bad option ... or a worse option ... smacks more of coercion than consensus or compromise," McDowell wrote.
McDowell's so-called "bad option," named after Title I of the FCC-enabling Communications Act, is to classify the internet as an information service, and not a telecommmunications service, which would greatly limit the FCC's powers. His "worse option", named after Title II of the same act, is the telecommunications classification, which would bring the internet under FCC authority, as are phone companies.
So-called coercive midnight plotter Genachowski, however, is no fan of fully embracing either Title I or Title II. In his compromise-seeking "Third Way" proposal floated this May, he wrote: "I have serious reservations about both of these approaches."
Among the components of Genechowski's Third Way, he explains, would be to: "treat only the transmission component of broadband access service as a telecommunications service while preserving the longstanding consensus that the FCC should not regulate the Internet, including web-based services and applications, e-commerce sites, and online content."
In other words, a little of Title I and a little of Title II.
Democrat Mignon Clyburn was the last FCC commisioner to weigh in on the upcoming meeting, writing on Wednesday: "The Internet is a crucial American marketplace, and I believe that it is appropriate for the FCC to safeguard it pursuant to our duties and obligations," she wrote, adding that "clear rules of road are absolutely necessary for consumers to be protected and for broadband providers and other users of the Internet to be able to further innovate and invest."
Perhaps unsurprisingly, remarks by anti-regulatory Baker and McDowell that focus on "the directly elected representatives of the American people" (Baker) and "the will of the elected representatives of the American people" (McDowell) come just weeks after the Republican gains in the Senate and their takeover of the House of Representatives.
By contrast, in a joint statement in response to Genachowski's Third Way proposal back in May, well before November's table-turning election, Baker and McDowell expressed concerns that chairman's proposal would disrupt the "bipartisan framework for addressing broadband regulation."
What a difference six months makes. ®
In his interview with commissioner Copps, Bill Moyers asked: "Do you realize that, when you talk this way, you talk about the public interest sphere, you talk about democracy, you talk about any kind of effort to curtail the power of the market, Glenn Beck's going to call you a communist, a socialist, or worse? You realize that don't you?
Copps' response: "I guess so."