Congress rebukes FCC on Net neutrality rules

The Federal Communications Commission's plan to impose Net neutrality regulations just became much more difficult to pull off.

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.

This amounts to approximately the last thing that any FCC chairman, at least one concerned with his future political prospects, wants to happen on his watch. Not only do Monday's letters inject a new element of uncertainty into whether the FCC will try to repurpose analog telephone-era rules to target broadband providers, but they also sharply increase the likelihood of the process taking not many months but many years.

"Questions about the FCC's legal authority should be decided by the Congress itself, and not by applying to the Internet a set of onerous rules designed for a different technology, a different situation, and a different era," AT&T's senior vice president for legislative affairs, Jim Cicconi, said Monday.

Last month, a federal appeals court unanimously ruled that the FCC's attempt to slap Net neutrality regulations on Internet providers--in a case that grew out of Comcast throttling BitTorrent transfers--was not authorized by Congress. The opinion called the FCC's claims "flatly inconsistent" with the law.

Supporters of Net neutrality say new Internet regulations or laws are necessary to prevent broadband providers from restricting content or prioritizing one type of traffic over another. Broadband providers and many conservative and free-market groups, on the other hand, say some of the proposed regulations would choke off new innovations and could even require awarding e-mail spam and telemedicine identical priorities.

For a day or so earlier this month, Genachowski seemed to be wavering, and perhaps even favoring an approach that would have left broadband services unregulated. But after pressure from liberal advocacy groups, the FCC announced plans on May 6 to resuscitate its Net neutrality rules through a legal dodge that, agency lawyers claim, stand a better chance of surviving an inevitable legal challenge.

It's true that President Obama campaigned on a platform that included Net neutrality, and through a representative recently reiterated that he is still "committed" to the idea.

It's also true that no FCC chairman ever starts a fight with Congress during the budgetary process unless there's a very good reason, and preferably very good odds of winning. Genachowski's private-sector experience as general counsel and chief of business operations for IAC/InterActiveCorp has presumably made him aware of when it's time to cut your losses and change the topic. How about those new iPhone early termination fees, for instance?

Which means that, unless something unexpected happens, the fight over Net neutrality will shift a few blocks down Independence Avenue from the FCC to Capitol Hill. (In an editorial Monday, The Washington Post called for just that.)

A shift to Capitol Hill

As if on cue, the Democratic chairmen of four different congressional committees or subcommittees announced on Monday a plan to "develop proposals to update the Communications Act," beginning with meetings in June.

Though the Senate and House chairmen--including Sen. John D. Rockefeller and Rep. Henry Waxman--didn't say what the update to the 1996 telecommunications law would include, lobbyists on both sides are assuming that Net neutrality laws will be a big part of it.

The news was met by a flurry of statements from advocacy groups. The OpenInternet Coalition, which includes Amazon.com, Google, and eBay as members, said: "We are pleased to see Congress working alongside the FCC to address the implications of the Comcast v. FCC decision." Free Press claimed, however, that the FCC should forge ahead regardless of the congressional rebuke: "We cannot wait for Congress to act to protect consumers."

That, liberal advocacy groups and their like-minded corporate allies fear, is the rub. Because of a longer than usual holiday schedule and campaigning for the November elections, Congress only has a solid month or two of legislating scheduled for the next half year. When an Elena Kagan nomination and financial reform are afoot, Net neutrality will hardly be a priority.

In theory, most Democrats favor Net neutrality. But theory doesn't always mesh with political practice. Rank-and-file Dems are clamoring for Net neutrality about as much as Bush-era Republicans were clamoring for limited government: it's a valuable talking point, but of course there's no need to do anything hasty. (Besides, even in this anti-incumbent year, how many single-issue Net neutrality voters are there?)

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.

So they need to crank up the public and private pressure on Genachowski and the other commissioners. "This appears to be the start of a long process," Public Knowledge said Monday. It claims the FCC must use its existing "authority to carry out its plan to set some rules of the road for the Internet."

There is a flaw in that argument. Even though there have never been explicit Net neutrality laws or regulations, actual examples of malfeasance by broadband providers have been as rare as George W. Bush being caught eating arugula. You can count them on one hand: Comcast v. BitTorrent and Madison River.

If Comcast or AT&T ever violates antitrust laws or consumer protection laws, existing law gives the Justice Department and state attorneys general ample authority to investigate and litigate. The lawyers staffing those agencies, hardly timid souls, have proven to be eager and willing to do just that. And fraud, of course, has been illegal for hundreds of years.

In addition, California law allows companies such as Amazon.com, Google, eBay, and Yahoo to sue broadband providers engaging in any "unfair" business practice that has caused "injury" to them.

So why is this urgent push for federal regulations so necessary? Genachowski might be asking himself that question right about now.

Disclaimer: Declan McCullagh is married to a Google employee