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

from the good-luck-with-that dept

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?

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