Big Broadband's Hail Mary To Stop The FCC: Have Congress Pretend To Do Its Job

from the good-luck-with-that dept

Mon, Dec 22nd 2014 7:54am — Mike Masnick

As we've clearly stated in the past, having the FCC reclassify broadband as a common carrier under Title II of the Telecommunications Act is not the perfect solution to the net neutrality question, but it's the best of a bunch of bad options. A theoretically good Congress would step in with a rewrite to the law to update it for the times. As we noted in that link above, there were two problems with this idea of a Congressional rewrite: (1) Congress isn't particularly functional and (2) lobbying dollars might make the end result worse. Two interesting things have happened in the past couple of months. First, having the FCC reclassify broadband under Title II went from a pipe dream -- which it absolutely was at the beginning of the year -- to quite likely (especially following President Obama's official support for reclassification). Second, the Republicans won Congress in the election. As we've noted, for reasons that don't fully make sense, net neutrality has become a (stupidly) bitterly partisan issue, with Republicans against it and Democrats for it. This is true despite Republican and Democrat voters alike being overwhelmingly in favor of net neutrality.

So, with a Republican-controlled Congress, it appears that the plan is to actually try to do a rewrite of communications law, with the stated goal of legislating net neutrality -- even to the point (it's claimed) of supporting President Obama's requested net neutrality rules:

One important piece of the proposed legislation would establish a new way for the FCC to regulate broadband providers by creating a separate provision of the Communications Act known as "Title X," the people said. Title X would enshrine elements of the tough net neutrality principles called for by President Obama last month. For example, it would give FCC Chairman Tom Wheeler the authority to prevent broadband companies from blocking or slowing traffic to Web sites, or charging content companies such as Netflix for faster access to their subscribers — a tactic known as "paid prioritization."

In theory, this sounds great. This is, in fact, what we've long said is the better solution. Rather than trying to cram broadband under Title II and dealing with the ill-fitting pieces via forbearance, actually writing regulations for the 21st century sounds like a better idea. Especially if it's true that it would block paid prioritization.

But, does anyone honestly believe this is what's going to happen? Remember, for years Republicans in Congress have angrily denounced any sort of net neutrality rules as "regulating the internet." Yet, now, suddenly, people think that they're going to do so in a slightly different manner through a rewrite of communications law? On top of that, the politicians opposed to net neutrality have taken in insane amounts of cash from big broadband providers. It seems highly likely that any such rewrite to the Telecommunications Act is going to contain plenty of gifts for the big broadband players, and huge loopholes. Considering that the big broadband players have fought any sort of real net neutrality rules for over a decade, while also making noises about how they not only like paid prioritization very much, but that they really want to figure out more ways to charge internet services to double or triple pay just to reach end users, it's difficult to take seriously the idea that this new law will actually be real net neutrality at all.

And, of course, rewriting the Telecommunications Act is a massive job that will impact a ton of other issues as well -- from things like municipal broadband to spectrum to the Universal Service Fund -- but is unlikely to do very much of anything to actually help the key thing that is more important for the future of an open internet: encouraging real and meaningful competition. In fact, it seems fairly likely that most of the moves will be designed to limit such competition, giving more power to the giant broadband players who already dominate the market.

In many ways, this is a rather clever play by the big broadband players and their supporters. They're recognizing that they lost the battle over Title II. At this point, it's almost entirely certain that the FCC will move to reclassify. So, instead, they're going to switch over to Congress -- a plan that, in theory, is more appropriate -- while knowing that with the current state of Congress, the resulting law that will be written will not just block the possibility of Title II, but will serve up some sort of fake, loophole-ridden version of net neutrality in its place.

It is, of course, possible that Congress could do a good job rewriting the Telecommunications Act, but since when has anyone believed that Congress was competent about issues like this?

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Filed Under: broadband, congress, fcc, net neutrality, paid prioritization, title ii, title x

19 Comments

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Anonymous Coward, 22 Dec 2014 @ 8:06am

...but since when has anyone believed that Congress was competent about issues like this?
What we are seeing here is the end result of focribg Congress to rely exclusively on outside think-tanks and lobbyists to write technology policy. There once was a time when Congress could ask its Office of Technology Assessment to give it policy advice, but it was axed in the 90s under the pretense of saving taxpayers money. The irony being is that the current status quo for policy advice results in an even bigger drain on the taxpayer!
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That Anonymous Coward (profile), 22 Dec 2014 @ 8:08am

"but since when has anyone believed that Congress was competent about issues like this?"

They don't, but they know the lobbyists will write the bill for them and the outcome will suck for consumers.
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Geno0wl (profile), 22 Dec 2014 @ 8:14am

welp
It is, of course, possible that Congress could do a good job rewriting the Telecommunications Act, but since when has anyone believed that Congress was competent about issues like this?

https://www.youtube.com/watch?v=uId3b59G0QU
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Anonymous Coward, 22 Dec 2014 @ 8:51am

Does Congress even understand how the internet works? For example, do they understand the difference between neutral peering agreements and paid transit agreements.

Who are the technical advisers that will really be drafting this bill? Congress had a better understanding of insurance companies when drafting the Affordable Care Act, and that turned out to be a train wreak.
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Anonymous Coward, 22 Dec 2014 @ 8:59am

I have a lot of faith in Congress.
I have faith that they'll continue to find new ways to not get things done for even longer periods of time.
I have faith that they'll turn absolute non-issues into hardcore extreme partisan issues to fight over.
I have faith in their ability to turn every ounce of gold into pounds of shit.
I have faith that they'll take more money from luxuries while cutting funding to necessities, all while giving themselves raises.
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Andyroo, 22 Dec 2014 @ 9:20am

Wow
Let the laws change then google and Microsoft and others should buy up comcast and verizon and and make the crazy republican laws irrelevant. Google needs to build out their fibre network to cover every large city 100% with fibre to the home at the prices they have been touting for a few years.
If the FCC walker could just remove some of the laws preventing others form creating isps the whole system would resolve itself through competition but i doubt the lawmakers want to lose their bribe money.
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Anonymous Coward, 22 Dec 2014 @ 9:36am

Re: 'Congress to rely exclusively on outside think-tanks and lobbyists to write technology policy'
It's worse than that, the lobbyists in many cases actually write/provide the text of the bills to be voted on. I still would love to see a requirement/amendment that every bit of text to be voted on contain a required statement of authorship, under penalty of perjury. I can dream.
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Thrudd, 22 Dec 2014 @ 10:00am

hmmmm
I missread that last bit as ....
Under penalty of pillory. ... and for some reason a grin was on my face.

Come on people, make it so.
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Anonymous Coward, 22 Dec 2014 @ 10:19am

Congress = ,therefore we expect .
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Anonymous Coward, 22 Dec 2014 @ 11:07am

seems to me that what is being shown here, more than anything, is regardless of who is in Congress, they are not in the slightest bit interested in doing anything that doesn't line their own bank accounts as much as possible first! i dont know about needing a new Telecommunications law, we desperately need new people in Congress who are not only able to but willing to do the job they are elected to do and can be held completely accountable when found to not be doing that!!
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Spaceman Spiff (profile), 22 Dec 2014 @ 11:45am

Since When?
"It is, of course, possible that Congress could do a good job rewriting the Telecommunications Act, but since when has anyone believed that Congress was competent about issues like this?"

Oh, about in 1790 perhaps, before electronic communications was invented...
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steell (profile), 22 Dec 2014 @ 1:31pm

Congressional Bill
This is a time for this site, Popehat, and a number of other legal/tech sites to step up to the plate and offer our own bill to be passed. Set up a website that allows people to sign a petition supporting our bill that allow people to list their address, thus identifying their Representatives and Senators, and letting them know their own Constituents are supporting our bill. Call it the Internet Rights bill.
It's time for "We the People" to stand up and remind a bunch of politicians exactly who they work for.

It's our damn bill, now pass it or resign from Congress.

We stopped SOPA, we can do this.
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Anonymous Coward, 22 Dec 2014 @ 7:33pm

For example, it would give FCC Chairman Tom Wheeler the authority to prevent broadband companies from blocking or slowing traffic to Web sites, or charging content companies such as Netflix for faster access to their subscribers — a tactic known as "paid prioritization."

The authority to prevent? I assume that means they also have authority to enforce blocks and slowdowns as well then?

Only Tom Wheeler? What if he dies or resigns?
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Anonymous Coward, 22 Dec 2014 @ 7:59pm

Re:
"Who are the technical advisers that will really be drafting this bill? Congress had a better understanding of insurance companies when drafting the Affordable Care Act, and that turned out to be a train wreak."

All advisory boards were axed, including science. Health insurers wrote the bulk of the ACA and you can be sure that cable companies will be the ones writing this too. That's their strategy.

I'm so sick of hearing net neutrality as a form of "government takeover" and "government can't do anything right" and "keep your hands off our internet" that every single politicain caught saying those things should be branded for life.

One thing I'm confident in is that today's kids aren't going to allow gumming up their internet. This is their single issue topic.
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Anonymous Coward, 22 Dec 2014 @ 8:04pm

Re:
"seems to me that what is being shown here, more than anything, is regardless of who is in Congress, they are not in the slightest bit interested in doing anything that doesn't line their own bank accounts as much as possible first!"

It should also become apparent to you that it doesn't matter who is in office or congress as long as big money are controlling the purse strings. That's who have the money and industries "too big to fail". The government is largely a powerless pawn anymore.
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Anonymous Coward, 22 Dec 2014 @ 8:11pm

A bill in Congress is an excuse for cable companies to write the bill and gradually undermine it.

A long time ago there were bills that said air waves belong to the public, broadcasting was an exception (similar to copyrights). Look at what happened to the bill preventing banks from gambling? So let's do another?

Nope. In this case, I want strong regulation. I think that might be tougher to tear apart (which they will try to do).

I don't know of a single person who has ever "liked" their internet provider. I know I sure don't, but I have no choice since there's only one in the 5th largest city in the US and municipal broadband is illegal. Urban areas have no internet but one person has paid thousands for high speed lines so everyone in that zip code is considered to have "high speed". Who made up those rules? Cable companies. Sure give them more ... Not a fat chance.
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Pragmatic, 23 Dec 2014 @ 5:10am

And there I was thinking the Republicans are all about a free market economy. Turns out they're all about protectionism, cronyism, and other anti-free market practices.

That said, at least they've acknowledged (if you read between the lines) that there's no such thing as one, due to all the protectionism, etc.
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t-dub, 23 Dec 2014 @ 9:56am

Re: Congressional Bill
This is an excellent idea. The proposed bill would be thoroughly researched, pre-heated by members of the sites, and would be well publicized in the right circles. Once it's written, approaching companies like Google or Sonic.net who are vocally in support of Net Neutrality and asking them to commit and offer their perspective would be really helpful too.

~tw
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Sheogorath (profile), 25 Dec 2014 @ 9:37am

I admit to having no idea whom 'Big Broadband's Hail Mary' is, but here goes:
Hail Mary,
bereft of Grace,
the FCC is no longer(?) with thee.
Censured art thou among service non-providers,
and hated is the fruit of thy lobbying, 'information services'.
Stupid Mary,
for the love of God,
allow us to have net neutrality now
and at the hour of our browsing.
Amen.
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