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Net neutrality bunfight heads to Congress, with predictable results

Washington jostles with broadband rules

Not one but two Congressional hearings over net neutrality have taken place this week, sparking a wave of letters, commentary, and advocacy but precious little resolution.

Many of the arguments that have been rehearsed over the past few months were given another airing. But what is new is an effort by Congress to develop and pass legislation that would pre-empt a decision by the Federal Communications Commission (FCC) next month over how internet access is classified in law.

The large cable companies – represented on the Senate's expert panel by no less than two former FCC Commissioners – are all for the new legislation, having tried and seemingly failed to persuade the FCC to take a light-touch regulatory approach.

The FCC is expected to announce rules soon that would classify broadband providers under so-called "Title II" legislation, providing the government with significant authority over their actions.

The draft legislation, put out in some haste by the chairs of the two relevant committees in the House and the Senate, takes a different approach. It explicitly addresses some of the main net neutrality concerns – such as content blocking and paid prioritization – but also limits the FCC's authority over those issues in future.

Certain I like that

Not surprisingly, the telecoms industry is behind that idea. Meredith Attwell Baker, CEO of the Wireless Association and former FCC Commissioner and NTIA head, repeatedly pushed a new and popular point about "certainty." She argued that Congressional legislation would save any FCC rules from going through an inevitable legal battle and so give industry greater certainty over what the playing field looks like.

Given that the entire debate is happening because the FCC's prior internet rules were struck down by the courts and that its biggest current concern is how to create new rules that would survive a legal challenge, the point is well made.

However, those who want to see Title II legislation imposed – including the CEO of open internet pressure group Public Knowledge, Gene Kimmelman – are concerned that the proposed legislation specifically limits the authority of the FCC to deal with future issues.

That concern, expressed in some detail by the Stanford Law Review, is that the legislation would form a set of rules that are then locked down, in effect giving ISPs years to devise clever ways around them – with the FCC powerless to stop them.

On the Senate panel, straddling both sides of the debate, was Amazon's VP of Global Public Policy, Paul Misener. Misener is happy for both the FCC and Congress to work on solutions, so long as they don't leave the path open for telcos to squeeze big internet companies like Amazon to get at their customers.

Misener also raised oft-cited concerns over what would happen if the wrong rules were passed. "The internet operators have been on their best behavior," he told the Committee, "because they are concerned the FCC or Congress will come down on them."

As soon as the "uncertainty" is cleared up, everyone expects those companies that connect millions of customers to the internet – and by extension, to millions of companies want to sell to them – to spend their entire waking lives figuring out how to make money from that unique position.

On the other hand, even Title II's biggest advocates acknowledge that it is far from a perfect solution, since the legislation is outdated and large parts of it would have to be "forebeared," or removed, in order to make it workable in the 21st century.

And on the other side

Much of the same debate was hashed out in the House committee session – featuring, incredibly, several of the same expert panelists as the Senate committee. Again, big cable companies don't want to be hamstrung by legislation, while nobody but the cable companies trusts them not to abuse their position down the line.

It's not just Congress that is getting in on the act either. The mayors of New York and San Francisco jumped into the political mix, arguing in a letter to the House committee that they want to see Title II applied because they don't have the resources to monitor everything that the ISPs get up to.

"Currently, the lack of clear, accurate information results in confusion with respect to key service features, like download and upload speeds, pricing and usage restrictions," the letter argues.

Neither the bill put forward in Congress – which is so new the paint hasn't dried – nor the application of laws created in 1934 is a great fit, and everyone is currently focused on pointing out the holes in each, with little effort put into finding a useful way forward. So where do we go from here?

What is clear is that, even though the Republicans have the majority in both houses of Congress, they need the support of Democratic colleagues to pass legislation, not least because President Obama holds a veto and has already made it abundantly clear that he supports some form of Title II legislation.

As one Congressman made clear today, "this would all have been a waste of time" if no consensus came out of Congress and the FCC decided to move ahead with its own rules. And so it is up to Congress to first find agreement and then persuade the FCC to hold off its own rules.

Considering Congress' pitiful track record for reaching agreement on anything for the past six years, however, the smart money is currently on the FCC. ®

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