Net Neutrality Groups Push for FCC to Buck GOP Tide

Tuesday, 16 November 2010 20:49

Net Neutrality Groups Push for FCC to Buck GOP Tide

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FCC Chairman Julius Genachowski in an interview at his Washington office, March 12, 2010. AP

With the patience of his natural allies wearing thin, and a hostile new Congress taking over in January, FCC chairman Julius Genachowski is under intense pressure to make good on his and

President Obama’s pledge to force fairness rules on the nation’s ISPs.

But to do so, Genachowski will have to buck a Republican-controlled House and unilaterally move to undo Bush-era deregulation. He has few options in order to restore and extend so-called net neutrality — the principle that internet providers shouldn’t pick favorites on the web, control what software people use, or discriminate against rival content.

The net neutrality debate has become a flash point for the broader discussion about how the internet will be regulated and how services like web phone calls and streaming video will be treated. Public interest groups are cautiously hopeful that Genachowski will act before the new Congress is seated, at which time the environment for the FCC and net neutrality advocates will become much more difficult.

But net neutrality isn’t even on the agenda for November — the FCC meets once a month. That means the agency has one shot, the December meeting, to make it so. The agenda for December should be public by Nov. 24. That’s cutting it very close, but interest groups that want the FCC to assert itself aren’t giving up hope — at least not publicly.

“We expect Chairman Genachowski to complete the job he started on net neutrality by the end of this year,” said Tim Karr, Campaign Director of Free Press, a D.C. interest group that advocates for net neutrality. “Given the spirit of openness with which he began his tenure, we remain hopeful that Chairman Genachowski will put the public demand for an open internet before the narrow interests of Comcast and AT&T,” Karr said. “The process has run its course. It’s time for him to get the job done.”

Adding fuel to the fire is an openly hostile memo being circulated by Rep. Fred Upton (R-Michigan), who is aiming to become chairman of the Energy and Commerce Committee which oversees telecom policy. He’s laying down the opposite marker, warning the FCC to back off from an initiative “unauthorized and opposed by Congress.”

To say the least, Genachowski is in a very difficult position. Just over a year ago he pledged to support net neutrality. In April, a federal judge ruled that the FCC lacked the authority to enforce it, a decision which left the chairman with few options — none of them particularly palatable — to make good on his word.

One option would involve reclassifying most aspects of broadband from a Title I “information service” to a Title II “communications service,” which would give the FCC the authority it needs to enforce net neutrality. Genachowski has described this path as the “third way,” and it has garnered the support of many net neutrality advocates. Giant internet service providers like Comcast and AT&T vehemently oppose this, arguing that it would amount to a regulatory over-reach that could lead to price controls or rampant litigation.

A second option would entail keeping broadband classified under Title I, and simply establishing new net neutrality rules as part of the agency’s ongoing Notice of Proposed Rulemaking process.

Both options would almost certainly face legal challenges.

The odds of Title II reclassification — putting ISPs in the same regulation bucket as phone companies — would appear to be very slim, since Genachowski has not exactly demonstrated an appetite to declare what would amount to all-out war against the cable and telecom giants. But either approach will end up in court so the tactical question for Genachowski is which approach has the best chance of withstanding a legal challenge?

That would be Title II reclassification, according to Gigi Sohn, President of Public Knowledge, an interest group based in Washington, D.C., that advocates net neutrality.

“The most legally sound course for the chairman to take would be to reclassify broadband internet-access service under Title II,” Sohn said, because issuing the new rules under Title I was all but precluded by the court’s April ruling. If the FCC reclassifies broadband under Title II, then Genachowski would simply have to prove that the move was not “arbitrary and capricious,” according to Sohn, a standard she believes the chairman can meet in a court of law.

Sohn said Genachowski should act “before the end of the year because it will not get any easier, in fact it will only be harder, after Dec. 31.”

An FCC spokesperson declined to comment on Genachowski’s net neutrality plans.

Incoming Republicans have made it clear that not only is any net neutrality legislation a non-starter, but they will seek to curb the power of the FCC, which they view as an activist regulatory body. (Cable giant Comcast wants to limit the regulatory power of the FCC as well. During a speech on Monday at the Brookings Institution, Comcast Executive Vice President David Cohen argued that government regulation of the internet (.pdf) be kept to an absolute minimum, and that the broadband industry should pursue a model of “self-governance.”)

Rep. Upton’s memo, obtained by The Hill newspaper, was a not-so-subtle shot across the FCC’s bow.

“The FCC’s regulatory compass must be broken as they continue in their unrelenting pursuit to impose so-called network neutrality regulations, regardless of whether the agency has the legal authority for such a blind power grab, and whether such regulations will actually undermine the FCC’s ability to achieve the goals of the National Broadband plan,” Upton wrote. “The FCC must stand down from pursuing a course unauthorized and opposed by Congress.”

Since 1989, Upton has received $93,600 from AT&T — his second largest career campaign contributor — $51,500 from Comcast, and $47,550 from Verizon, according to the Center for Responsive Politics.

It’s unclear which Democrat will become the ranking member on the telecom subcommittee, but some observers think the most likely candidate is Bobby Rush (D-Illinois), the former Black Panther who is now seen as a big ally of the cable and telecom industry. Since 1989, Rush has received $78,964 from AT&T — as with Upton, the telecom giant is Rush’s second largest career contributor — $43,499 from the National Cable and Telecommunications Association, and $42,000 from Verizon, according to the CRP.

In other words, if Upton and Rush assume top positions on the Energy and Commerce Committee and telecom subcommittee, then two of the most powerful members of Congress with respect to telecom policy will have received at least $350,000 from cable and telecom interests over the course of their careers.

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