Net Neutrality, Nausea & Political Theater at Its Worst

Chairman Julius Genachowski, who was the original wimp when it came to reclassifying broadband.

The five FCC commissioners traveled to the Capitol today for a House Communications and Internet Subcommittee hearing on the necessity of the network neutrality order passed by the FCC in December. The hearing was the first step in a process that attempts to repeal the FCC’s network neutrality rules and prevent the FCC from trying to implement them again.

After the hearing, I now know what’s worse than the thousands of pages of rhetoric and willful misunderstanding contained in the net neutrality comments that were submitted to the FCC while it spent more than a year setting its network neutrality rules: watching Congress express the same grandstanding and willful misunderstanding of the order for more than three hours. It’s nauseating, and less fun even than reading pitches for the latest Groupon clone.

Whether it’s Republican Commissioner Meredith Attwell Baker saying that she used a Slingbox but defending AT&T blocking the device because of the amount of bandwidth it consumed, or the continued assertions by Republican congressmen that network neutrality will protect against imaginary harms without acknowledging the documented harms that network neutrality rules would have prevented, the Republicans pushed hard against the FCC’s regulations. Meanwhile, the Democrats contented themselves with pushing for a reduction in the digital divide and asserting that the FCC’s rules were an example of “light touch” regulations that won’t stifle the industry.

Here are the only three things worth noting from the hearing:

  • FCC Chairman Genachowski said the Level 3 and Comcast debate over access to Comcast’s last mile subscribers is a business issue and not a net neutrality issue. For the implications of this fight, refer back to our previous coverage.
  • FCC Commissioner Robert McDowell resurrected the ghost of unlicensed white spaces and set it up as a competitive threat to existing ISPs. He then used that threat of eventual competition to argue we no longer need net neutrality rules. I tend to agree that if we had robust broadband competition, we wouldn’t need network neutrality, but according to McDowell, white spaces aren’t dead. If they aren’t dead, that’s important.
  • The FCC will keep the docket open on its effort to reclassify broadband, which would give the FCC the legal authority under existing laws regulate broadband as a transportation service (the so-called Title II authority). This is a good thing for network neutrality fans, as the existing net neutrality rules will likely be challenged in court, and keeping that docket open leaves a back door for the FCC to implement rules. However, the industry hates the idea of reclassification and will fight it tooth and nail. It also means more hearings, comments and arguments over the entire issue.

As a reporter who has spent hours in interviews and days reading filings from all players in this debate, or what FCC Chairman Genchowski called “the broadband economy,” watching this hearing made a mockery of all my efforts to understand what is a deeply complicated series of issues. At its core, this hearing was about whether the FCC has the authority to push forward with a set of net neutrality rules or if Congress should have done it.

Congress may try to enforce its right to repeal the FCC’s rules under what is known as a Congressional Review Act, but it’s unclear if that would succeed, given such a repeal requires passage in both Congressional houses and a presidential signature. President Obama has been in favor of net neutrality, although he has said less and less as the issue has become more controversial.

However, it’s beyond frustrating to see elected officials argue that Congress, which has devolved into a grandstanding and reactionary body serving the loudest constituency try to take the power of regulating ISPs away from an agency that has historically been entrusted with regulating the industry. Yes, that industry is changing, but the point of regulatory bodies is to amass a level of expertise and distance from politics that enable good regulations and policies to float their way up to the top. Whether or not the network neutrality rules are the best regulations around, they did take into consideration many legitimate technical opinions — as opposed to pandering to the whims of fashion on cable news.

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