A Clear Message Emerges From the Hill's Net Neutrality Mess: 'The FCC Must Act'

In the end, Henry Waxman came out on the right side of the last-ditch net neutrality debate at the end of the Congressional session. The chairman of the Energy and Commerce Committee confounded the critics, who slammed him and his staff for putting together a draft bill that supposedly favored the big telecom companies, when he called on the Federal Communications Commission (FCC) to get with the program: "The bottom line is that we must protect the open Internet. If Congress can't act, the FCC must."

He made the statement after a draft net neutrality bill apparently died just before Congress recessed for campaign season. It was not a pretty death.

This frantic debate, which stretched over weeks and hundreds of hours, including weekends, was a noble attempt at a bill. The tragedy is that it never should have taken place. Waxman perceived, correctly, that reluctant Regulator Julius Genachowski, the FCC chairman, was never going to act on his own to protect the internet. Genachowski, who was traveling abroad this week when much of the last-minute negotiations were taking place, presides over a largely paralyzed agency. Trying to fill the vacuum, Waxman tried to put together something that wouldn't please everybody, but might just get enough backing to move forward.

Reasonable minds can differ over the merits of the bill. So can unreasonable minds. The bill was fairly strong on net neutrality for wired communications, weaker for wireless, and purposely ambiguous in a number of places. If the timing had been different, so would the debate have been. If this bill had been proposed at the beginning of a Congressional session, or had the FCC acted on broadband authority, all parties would have made different assessments and followed different strategies and tactics.

And at the end, Waxman had pulled together reasonable support, from industry and from the non-profit sector. But the effort also created a lot of divisions, as companies and non-profits disagreed on what stance to take.

At the end, the politics were fascinating. Under normal circumstances, when AT&T and Verizon want House Republicans to do something, they usually do it. AT&T and Verizon wanted Waxman's bill, sensing a win. Amazingly, however, House Republicans balked. Call this the Tea Party influence on telecom. Some Tea Party groups sent a letter to the FCC asking the Commission not to "regulate the Internet." Remarkably, their letter, from a batch of grass-roots organizations, used the same talking points as inside-Washington players like the National Cable and Telecommunications Association and Americans for Tax Reform, when referring, for example to the "depression-era" Communications Act.

So what we had here were some "grassroots" groups using industry talking points to kill a bill that the telecom industry now wanted -- or at least said it could support. Ah, irony.

The problem, of course, is that the talking points, whether voiced by the telecom industry, Tea Partiers or members of Congress, are misleading. For the 1,000th or so time, it must be pointed out that the FCC has never proposed to regulate "the Internet." The FCC has proposed to take jurisdiction over broadband Internet access, which connects people to the Internet, just as dial-up service does. The Communications Act, built around universal principles going back hundreds of years, has remained flexible enough to be sustained in one form or another from the Depression days of simple telephone switches up through the sophisticated data routing gear of today.

In addition, the issue is larger than simply net neutrality. Any Tea Partiers living in rural areas whose local telephone companies are now supported by Universal Service funds wouldn't have the same support for broadband, because the FCC has no authority over broadband. Big telephone companies which receive millions of dollars in support for serving rural areas for dial-up wouldn't get the same millions of dollars in support for serving rural areas for broadband, because the FCC has no authority over broadband.

Not all the drama was on the Republican side. It would have been a fascinating exercise to see how those Democrats who profess to like net neutrality but think it a Congressional prerogative to establish it would have voted. Now it doesn't appear as if they will get that chance.

Make no mistake. This was an ugly process. Friends turned on friends, coalitions were fractured, hard decisions were made. And yet, at the end of the day, one clear defining message came out of it, and it bears repeating. The chairman of the House Energy and Commerce Committee said that the FCC "must act." Waxman's directive couldn't be any clearer. Genachowski has his marching orders. It's time for him to hit the road and get it done.