Senate Democrats badger FCC boss on Net neutrality

But the first appearance here since 2004 of all five FCC commissioners before the Senate Commerce Committee, which has jurisdiction over the agency's duties, lacked the fireworks some had predicted. Looming midday votes on the Senate floor held each politician present to a single five-minute period for posing their questions and listening to responses.

The time constraints left many senators pledging to submit questions for commissioners to field later in writing, and others requesting follow-up hearings.

Committee Chairman Daniel Inouye (D-Hawaii) used his allotment to focus on the FCC's handling of what became a contentious decision over which merger conditions to place on AT&T and BellSouth. After a months-long impasse, the two Democratic commissioners agreed to vote in favor of the deal, but only after AT&T voluntarily agreed to abide by a number of requirements, including Net neutrality, or an agreement not to charge Internet content or application companies extra fees for premium service.

But Inouye, who also supports Net neutrality requirements, said he had gotten the impression that Republican FCC Chairman Kevin Martin and fellow Republican Commissioner Deborah Tate did "not intend to stand by the deal that was reached."

He was referring to a joint statement accompanying the deal in which the commissioners said, among other things, "Today's order does not mean that the commission has adopted an additional Net neutrality principle. We continue to believe such a requirement is not necessary and may impede infrastructure deployment."

Asked Inouye, "If you felt so strongly about this condition, do you think you had an obligation to withhold your vote and continue further negotiations?"

Martin said he and Tate planned to enforce AT&T's voluntary commitments. But, particularly with the Net neutrality area, he added, "that did not mean we were changing our policy and were going to enforce those sorts of Net neutrality requirements on others."

The FCC chairman's well-known aversion to sweeping Net neutrality regulations drew sharp questions from Sen. Byron Dorgan (D-N.D.), one of the chief sponsors of a bill that would require network operators to follow nondiscrimination rules. By failing to include network operators in the scope of nondiscrimination requirements traditionally placed on telephone companies, "does that mean you favor discrimination?" he asked.

Martin said he might be able to handle such a requirement if nondiscrimination meant, "if you offer a service to one, you have to offer that same service to all."

But the idea of prohibiting "any carrier who owns an underlying infrastructure from charging any content provider (extra fees)...could deter some investment in the underlying infrastructure," he said, echoing arguments made by the likes of AT&T and Verizon, which oppose Net neutrality regulations.

Dorgan and several of the Democratic senators present indicated they were still incensed about the FCC's decision to relax its media ownership rules years ago. Some asked what the regulators planned to do about what they consider to be dwindling local news content on the broadcast airwaves.

Martin said he wasn't opposed to considering making rules regarding "public interest" requirements for broadcasters, but said he was hesitant pursue rules forcing them "to put on certain kinds of programming." The regulators have begun a series of hearings on the topic and plan to make at least some changes to the rules in the future.

Whether for lack of time or other commitments, many politicians skipped the full slate of probing questions that may have been expected by those who queued for public seats in the hearing room. Half an hour before the event started, the line twisted down two stories' worth of spiral stairwells located just outside the hearing room.

One Republican senator, who vowed recently to propose limits on the FCC's authority to require so-called technology mandates like the "broadcast flag" copy protection scheme proposed for digital television, admitted he was somewhat unprepared to face the regulators--although it wasn't clear whether he was being completely serious.

"My staff had come up with a list of highly confrontational questions, but I somehow misplaced them this morning," said Sen. John Sununu of New Hampshire, adding that he promised to "make it up to (the commissioners) next time." (Instead, he peppered the regulators with questions about the technicalities of a seemingly uncontroversial topic: making "white spaces"--that is, unused chunks of spectrum that rest between TV channels--available for potential unlicensed use by wireless providers.)

The commissioners may encounter more pointed questions from a House of Representatives panel in a few weeks. The Energy and Commerce Committee has scheduled a hearing of its own for February 15 and asked all five commissioners to appear.

A letter (click for PDF of the letter) sent by Committee Chairman John Dingell (D-Mich.) and Rep. Edward Markey (D-Mass.) to the FCC indicates that Democratic leaders there intend to broach a broader set of topics. One question, for instance, asks Martin to explain why the FCC was unable to investigate reports that telephone companies have been turning over confidential phone records to the National Security Agency "in apparent contravention" of federal law.