Democrats in Congress appear ready to introduce legislation that would prohibit the FCC from pursuing a change in regulatory classification for broadband Internet service providers. A draft of the legislation, leaked by The Hill yesterday, would give the FCC authority to adjudicate Net neutrality violations on wireline networks on a case by case basis, but would stop the agency from shifting broadband from a Title I information service to a Title II telecommunications service. And as Larry Downes explains, it gives the agency only limited authority over wireless data networks:
The draft legislation tries to thread the needle on one of the most controversial features of the Net neutrality debate, which is whether the rules ought to be applied to wireless broadband access. Given existing constraints on the wireless infrastructure and the likelihood that consumer demand will tax the wireless infrastructure even more severely in the near future, providers have argued strongly that open-Internet rules should not apply to wireless broadband.
Under the FCC's October 2009 proposal, however, the Net neutrality rules would apply with equal force to both wired and wireless Internet access, though both would be subject to the exclusion for reasonable network management. The Google-Verizon framework, on the other hand, proposed to exclude wireless from the rules until the technology and the market stabilize. (That change in position by Google led some of its former allies to accuse the Internet giant of Net neutrality treason.)
The leaked draft legislation proposed a different approach, which is to apply only a limited subset of the rules to wireless. The wireless rules, for example, ban providers from blocking "lawful applications that compete with the provider's voice or video communications services."
It is not clear from the draft, however, whether that provision applies only to competing voice and video applications offered by the provider on its wireless network, or whether it extends to applications that wireless providers such as Verizon or AT&T offer on their wired broadband network.
Overall, it’s mixed bag: The limits on the FCC’s power to change broadband’s regulatory classification would curtail the most significant intrusions into ISP business models, and thus prevent the most significant potential consequences. And the wireless rules are certainly not as stringent as some of the most prominent Net neutrality boosters had called for.
But allowing the FCC to decide what constitutes a Net neutrality violation on a case-by-case basis is still worrying. In theory, the idea is to avoid rigid rules that might inadvertently chill innovation. But this isn’t a particularly appealing alternative; rather than rely on strict rules, it leans on regulator discretion, which may make way for sensible regulatory restraint but also potentially grants the FCC an awful lot of authority of what technologies do or don’t make the cut.
Ultimately, though, it may not matter. Although the proposal probably represents the best remaining opportunity for a broad swath of Net neutrality advocates to declare some sort of victory and move on, it’s a far cry from what the loudest supporters of neutrality want. And that means that it might not be easy to move the legislation through Congress. As Downes notes, Sen. Rockefeller looks unlikely to support any legislation that would prohibit a change in classification. And Free Press, which remains politically influential on the left, has indicated little willingness to accept anything but the strictest proposal, all of which could make it difficult for some Democrats to support the measure. Meanwhile, with Republicans likely to take control of the House after the November election, the GOP may not be willing to compromise even slightly. All of which means that in the end, after almost a year and a half of effort, neutrality boosters may end up with nothing.