Weekly Update

Enough already with net neutrality

I had lunch this week with two co-founders of a startup who had just come from the eighth floor of the FCC’s Washington, DC, headquarters, where they had met with a senior aide to one of the five commissioners to pitch their company’s technology for measuring network performance. The company hoped the agency would have some interest in using the technology to gather data and monitor compliance with its forthcoming net neutrality rules, whatever those turn out to be.

I asked how the meeting went.

“He seemed pretty burned out on net neutrality, actually,” they said of the aide. “Like he was sick to death of the whole subject.”

I’m not surprised. The subject has consumed tech policy circles in DC for months, ever since the DC Circuit Court threw out the FCC’s 2010 Open Internet order in January, forcing the agency to scramble to put new rules in place that will pass legal scrutiny. And there’s almost certainly more pain ahead for the FCC aide and his colleagues.

The commission received more than 3.7 million public comments on its net neutrality rulemaking proceeding by the time the comment period closed this week, more than double the previous record for any issue before the agency — the 1. 4 million comments it received in response to Janet Jackson’s wardrobe malfunction at the Super Bowl — which some unlucky schlubs at the FCC will now have to plow through to prepare summaries for the senior staff.

The agency created yet more work for itself this week by kicking off a weeks-long series of public roundtables on net neutrality. Congress also got into the act, holding at least two committee hearings on the topic, one each in the House and Senate.

Yet for all that, consensus on the issue, let alone a clear way forward, seems farther away than ever. The longer the rulemaking process has gone on, in fact, the shriller the debate has become and the more entrenched the positions of the various factions.

Introducing one of the roundtables, FCC chairman Tom Wheeler fairly begged the panelist to put aside their talking points “so that we can search for the equities in this complex issue.” The panelists then promptly launched into their respective talking points with as much force as ever, if not more.

Wheeler actually tried again, pleading that “everyone has the right to retreat into their corner and continue stating their talking points. But there is a risk of missing the opportunity to help shape dealing with an issue that is not monochromatic.”

It was hopeless. The only respite came when a panel of engineers took over from the lawyers and academics on previous panels, but the respite was fleeting.

On Capitol Hill the issue has become increasingly partisan, with Democrats lining up behind reclassifying broadband under Title II and banning paid prioritization, while Republicans demand the FCC refrain from any further “regulation of the internet.” Both sides claim to be the true champions of an open internet, but both sides equally want to avoid a repeat of the SOPA/PIPA fiasco of 2011.

Apart, perhaps, from the panel of engineers, very little new information is being added to the net neutrality discussion at this point, and the debate has nowhere to go but downhill. For all his efforts at inclusiveness, Wheeler now finds himself in a nearly impossible position.

Anything short of Title II reclassification and an outright ban on paid prioritization is all but certain to set off SOPA-like howls of protest from net neutrality supporters and a loss of support from the White House and Democrats on the Hill. Likewise, actually going as far as Title II risks the wrath of a potentially expanded Republican majority on Capitol Hill after the November elections eager to clip the FCC’s wings.

At the same time, any hope of brokering a compromise, of balancing the equities of this complex issue, look increasingly forlorn. At this point, Wheeler should probably just call a vote and start preparing the inevitable court challenge.