FCC Sets Showdown on Net Neutrality

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FCC Chairman Julius Genachowski announced the commission would vote this month on a plan to prohibit Internet service providers from favoring some kinds of web traffic over others. Citing “real risks to the Internet’s continued freedom and openness,” Genachowski said the FCC would vote on so-called Net neutrality rules Dec. 21.

The move ushers in a new phase in the battle between cable and phone companies, who resist any efforts at regulation, and advocates of an open Internet who hoped the commission would move aggressively to establish Net neutrality rules. Genachowski has long advocated Net neutrality rules, but suffered a setback in April when a court questioned the FCC’s ability to regulate broadband.

Hemmed in on what has become a political wedge issue, he sought a middle ground. The proposal would not reclassify broadband as a telecommunications service, which would have offered more meaningful checks on provide providers and which Net neutrality advocates sought. Nor does it extend network protections to wireless, giving service providers a “meaningful flexibility” they argue is necessary to manage networks with bandwidth constraints. FCC Commissioner Michael Copps, a forceful advocate for Net neutrality, greeted it tepidly, called it “the beginning of an important discussion,” while Republican commissioners blasted the plan.

“Broadband providers have natural business incentives to leverage their position as gatekeepers to the Internet.  Even after the Commission announced open Internet principles in 2005, we have seen clear deviations from the Internet’s openness — instances when broadband providers have prevented consumers from using the applications of their choice without disclosing what they were doing,” Genachowski said, according to prepared remarks. “The proposed open Internet framework is designed to guard against these risks, while recognizing the legitimate needs and interests of broadband providers.”

For consumer advocates, the compromise — which resembles a proposal put forth by Democrat Rep. Henry Waxman — may be a disappointment.  “To achieve real net neutrality and preserve the level playing field that is the DNA of the Internet, the FCC must do a lot better than offer failed proposals we have seen this year floated by big corporations or designed to win the unanimous consent of Congress,” Josh Silver, president of Free Press, said in a statement. “You can call any policy Net Neutrality, but the devil is always in the details — and right now the details look grim. We are glad the FCC is finally moving forward, but early reports indicate that this proposal looks like the fake Net Neutrality preferred by foes of the open Internet.”

Those “foes” include major providers, who lobbied extensively to avoid reclassification, as well as Congressional Republicans, who say the issue should be decided by the legislative branch. In a statement this morning, Republican Senator John Thune of South Dakota echoed an argument popular among foes of net neutrality. Any regulatory meddling, he said, will hamper a system that’s working fine.  “Chairman Genachowski has once again proposed a solution in search of a problem,” said Thune. “There is no evidence of systemic broadband market failure, and the FCC’s proposed Internet regulations will only create more uncertainty for broadband providers, which will deter broadband deployment and cost jobs in a growing sector of our economy. This is yet another step down the path of Intern et regulation and President Obama’s big government agenda.” The pitchforks actually preceded Genachowski’s statement; yesterday House Energy and Commerce Committee member Marsha Blackburn called it a “hysterical reaction by the FCC to a hypothetical problem.”

Genachowski’s remarks sketched out the basic principles of the proposal: corporate transparency, a ban on blocking legal content and “a bar on unreasonable discrimination” against Internet traffic. His remarks also recognized the need for “reasonable network management,” which providers say is crucial to optimal performance. “He got pushed into a very, very difficult corner here,” says Larry Downes of Stanford’s Center for the Internet and Society. “With the new Congress coming in in January and rattling the saber about more explicit oversight, this was his Hail Mary pass, the last real chance he had to do something.” While Genachowski said in his statement that he was confident the framework had a “sound legal basis,” it’s likely to face a court challenge if the five-member panel–which includes two other Democrats and two Republicans–passes it later this month.

(Disclaimer: TIME magazine and Time.com are part of Time Warner, which has no public position on Net neutrality. Like its competitors, Time Warner Cable, which was spun off from Time Warner in 2009, opposes new Net neutrality regulations.)

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