Congressional Representatives to FCC: Third Way? No Way!


When FCC Chairman and wannabe Internet cop Julius Genachowski announced his latest Net neutrality scheme, he attempted to frame it as a "third way" compromise between onerous, utility-style regulation of broadband providers and a wholesale abandonment of Net neutrality. The idea was to change the way broadband providers are classified but decline (at least for now) to enforce some of the tougher regulations associated with the new classification. But Genachowski's attempt at a compromise doesn't seem to have worked too well. Legislators on both sides of the aisle are warning the agency that they aren't pleased—and implying strongly that the proposed classification change could be illegal. From CNET's Declan McCullagh:

A bipartisan group of politicians on Monday told FCC Chairman Julius Genachowski, in no uncertain terms, to abandon his plans to impose controversial new rules on broadband providers until the U.S. Congress changes the law.

Seventy-four House Democrats sent Genachowski, an Obama appointee and fellow Democrat, a letter saying his ideas will "jeopardize jobs" and "should not be done without additional direction from Congress."

A separate letter from 37 Senate Republicans, also sent Monday, was more pointed. It accused Genachowski of pushing "heavy-handed 19th century regulations" that are "inconceivable" as well as illegal.

As with so much of what happens in Washington, this is as much a power struggle as a policy debate. The FCC wants to move forward with new regulations, but these legislators want the agency to ask for Congressional permission first. Which probably explains why the letters were sent just as a number of Congressional committee chairmen hinted that they might be ready to update the Communications Act (which provides the FCC with regulatory authority over information and telecom services).

Given that most Democrats support Net neutrality, one might think an updated Act would be a win for neutrality advocates. But McCullagh argues that updating the Act may make the regulatory timeline unworkable:

The last time there was a major rewrite of telecommunications laws, it took something like five years for Congress' internal mechanisms to spit out the Telecommunications Act of 1996. A push for national cable franchising legislation went on for years but died without a vote.

Which leaves pro-Net neutrality groups in an uncomfortable quandary. If they can't prod the FCC to grease the rails and slide some kind of regulation through soon, even if the legal underpinnings are anything but firm, Congress may not act until the iPhone 8G hits the streets in 2015. And by then, today's high water mark of Democratic political power may be just a memory.

More on Net neutrality and Title I/Title II here and here.