Congress to FCC: All Your Net Neutrality Authority Are Belong to Us

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.

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  • Fiscal Meth||

    "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."

    I don't understand why that's so controversial while regulations on my laptop service are fine.

  • ||

    Net neutralizers are trying to fix a solution with a problem. Let's hope they fail.

  • Joe M||

    All of which means that in the end, after almost a year and a half of effort, neutrality boosters may end up with nothing.

    Woohoo!

  • Bobby Smith||

    It's about time we limit the FCC's overreaching authority.

  • ||

    "It's about time we limit all federal agencies' overreaching authority."

    FIFY

  • JohnD||

    1+

  • ||

    By us you mean, huge corporations & maybe a small indy that gets eated up along the way by a huge corporation

  • ||

    No he meant congress.

  • Ron L||

    Will|9.28.10 @ 7:26PM|#
    "...huge corporations...huge corporation"
    You seem to have some idea what this means. Care to share it?
    Are these like those entities that made the computer you're typing on?

  • MJ||

    "All of which means that in the end, after almost a year and a half of effort, neutrality boosters may end up with nothing."

    In other words: Net Neutrality was so stupid on its face that it managed to gridlock a Congress under one party rule.

  • ||

    Net Neutrality booster translation:

    "I hate Comcast because they throttle my BitTorrent torrents, so I'd rather have the government telling ISPs they can't throttle me. And they'd never fuck with my torrents!"

    Pure. Fucking. Genius.

  • ||

    +9

    (I would have given +10, but it was throttled by teh gubmint)

  • TX Limey||

    I think that a lot of supposed supporters of Net Neutrality didn't/don't really have a clue as to what it actually meant. People just heard "neutrality" and "stick it corporations" and got on board. That may be true of a lot of ideas, but in this case I've never heard anyone make a case as to how net neutrality would actually improve anyone's online or wireless experience.

  • Tony||

    By keeping it the same.

    I say let the corporations at the Internet. Maybe it will be a visceral enough annoyance that libertarians will finally realize the folly of spending all their time stroking corporate shaft.

  • ||

    Maybe it will be a visceral enough annoyance that libertarians will finally realize the folly of spending all their time stroking corporate shaft.

    Corporation allow me to read your idiotic proclamations on a regular basis. I hate them more then you do.

  • Ron L||

    Tony|9.28.10 @ 8:01PM|#
    "...stroking corporate shaft."

    Just a hint, but you probably ought to seek some professional help for your fixation on wee-wees.

  • Tman||

    libertarians will finally realize the folly of spending all their time stroking corporate shaft.

    Think about this. What if MIT and the government never gave up control of the original Arpanet?

    Do you think we'd have Google and Amazon and Hit&Run; without "the corporate shaft"?

    If you say yes then you are dumber than we already think.

  • Tony||

    Never said I was against capitalism. But government needs to have an active role, such as ensuring the Internet remains the open forum it is and preventing the consolidation of ownership of pathways of communication, i.e., promoting the very qualities of capitalism that make it work. Not to mention inventing the damn thing. But carry on advocating for screwing yourself and calling it freedom.

  • Ron L||

    Tony|9.28.10 @ 9:12PM|#
    "Never said I was against capitalism...."
    And FDR never said he was against capitalism either, but we still got the point.

  • ||

    You can't have it both ways without resorting to special pleading. You trust corporations to produce everything else. Why can't car manufacturers make cars which enforce the speed limit, or refuse to start unless you provide proof of purchase for their brand of oil? Because people will buy different cars. Why can't the same be true of internet service?

  • Tony||

    You can't have it both ways

    Um actually I can. It's called a mixed economy. Just because you think in a binary way doesn't mean everyone else does.

    You trust corporations to produce everything else.

    No I don't. I trust them to produce higher quarterly profits for themselves... or not. I don't trust them to advocate for an environment which may be less profitable to them but more free for everyone else.

  • Ron L||

    Tony|9.28.10 @ 9:24PM|#
    You can't have it both ways
    Um actually I can. It's called a mixed economy. Just because you think in a binary way doesn't mean everyone else does."

    Let's be clear here: It doesn't take some asshole to be "against capitalism", just an ignoramus with a with the coercive power of the government.
    You don't have to be "against" what, oh, a nuclear power plant does to cause a catastrophe; all it takes is a bozo who is totally ignorant of how one works carrying a gun and pulling random switches.
    Sort of, shall we say, someone with your abysmal knowledge of how an economy works. That sort of ignoramus.

  • ||

    "Um actually I can. It's called a mixed economy."

    Oh, right, that thing we have in the financial sector (and everywhere else, courtesy of mountains of regulation) that has produced such spectacular results of late.

    Mixing two diametrically-opposed concepts and expecting anything save disaster is foolishness.

  • ||

    I don't trust them to advocate for an environment which may be less profitable to them but more free for everyone else.

    And then when they make that environment, another company can come along that makes an environment more profitable to them and more free to the people they are serving.

  • Tman||

    Just because you think in a binary way doesn't mean everyone else does.

    It's not "binary", it's reality. Profit motives encourage innovation on a level in which the Government can't compete. That's the beauty of the Constitution- keep Government around to promote the general welfare of the Republic. Don't make them promote equality of outcome, promote the equality of opportunity.

    I trust them to produce higher quarterly profits for themselves...

    You don't need to "trust" them. Either they produce profits quarterly or they go out business.

    I don't trust them to advocate for an environment which may be less profitable to them but more free for everyone else.

    So you speak for "everyone else" now?

    I didn't get that memo.

    Everyone is greedy. And neither you nor I speak for "everyone else".

    Individual liberty is lost when government stops asking "What is good for all individuals?" and starts asking "What is good?" To ask the latter question is to abandon a system in which all people are considered equal and to adopt a system in which all peo ple are considered alike. Collective good replaces individual goodies. Government will make life fair. But since limited government is hardly suitable to a task of this magnitude, the role of government will need to be expanded enormously. Government will have to be involved in every aspect of our lives. Government will grow to a laughable size. Or it would be laughable except for our experience in this century.-PJ O'Rourke
  • ||

    The only way government can ensure the internet remains an open forum is indirectly, by mobilizing our defenses if, say, China tries to take us over, and that doesn't have to involve any legislating of the internet itself.

  • Tony||

    Unlike you paranoid freaks, *I* trust government.

  • ||

    So we need massive regulation in order to "keep things the same"?

    Wow.

  • Anonymous Coward||

    Because it's Big Government's shaft that gets you all hot and moist like a Florida swamp in July. Little do you know, Big Government's homeboy, Big Business, is hiding in the bathroom, waiting for the right time to turn it into a DP.

  • Mr. FIFY||

    But stroking government shaft is a good thing, eh, Tony?

  • ||

    Lawnmower man

    Anyone else notice that the movie had absolutely nothing to do with the Stephen King short story.

  • Rhywun||

    Yup. I went in expecting flying, blood-covered body parts and got lame "virtual reality" claptrap instead.

  • ||

    When you think of how many Stephen King stories have been made into movies, it's surprising that almost none depart so far from the story as this one. Meaning, departs completely.

  • ||

    I get it, Reason is trying to appeal to the internet generation, but seriously? The 'All your _____ are belong to us" thing is at least 10 years old now...

  • Nancy Pelosi||

    Are you serious? It's almost 20 years old.

  • Glenn Beck||

    SOCIALIST! LET ME SHOW YOU MY FLOW CHART OF HOW THE ALMIGHTY CREATOR OF AMERICA POOFED THE ALL YOUR BASE MEME INTO EXISTENCE NO MORE THAN 10 YEARS AGO! WAKE UP AMERICA!!!!111

  • ||

    Obama's a communist. Stay tuned to learn what diabolical plot I uncovered written on a women's bathroom stall. That's right, Mike has a small dick AND.IS.A.COMMUNIST! Buy my book.

  • ||

    I get it, Reason is trying to appeal to the internet generation, but seriously? The 'All your _____ are belong to us" thing is at least 10 years old now...

    I think internet generation is a pretty cool guy, eh serfs the webbs and doesnt afraid of anything.

  • Sandy Smith||

    If the GOP really believes in the free market, they'll undo the provisions of the DMCA that reinforce the last mile monopoly and tout it as an answer to net neutrality.

    They don't, of course, so I'm looking forward to AOL 2.0.

  • Corduroy||

    That's a big if.

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