Rep. Alan Grayson shocked his passionate followers in the progressive online community this week when he aligned himself with the telecom industry and pressured the Federal Communications Commission not to write regulations protecting the principle of net neutrality.
Conservative bloggers immediately embraced Grayson, with Andrew Breitbart's Big Government mockingly offering him a "very warm welcome to the party," while reminding readers that he "is about as rabid a Leftist partisan as there is in Congress." Both Big Government and RedState.com gleefully noted that Grayson employs Matt Stoller, a former prominent blogger and leading net neutrality advocate.
On Monday, Google is expected to announce a deal with Verizon that would end net neutrality and allow telecom companies to slow down particular websites and charge fees similar to cable for access to certain sites on mobile devices. (There is increasingly little difference between mobile and stationary devices.) Verizon, under the agreement being negotiated, could crush blogs, companies or political candidates by slowing down their sites.
"The deal marks the beginning of the end of the Internet as you know it," responded Josh Silver, president of Free Press, an advocate of net neutrality.
So why does Grayson, a progressive champion, oppose allowing the FCC to regulate the Internet and implement net neutrality rules? The Orlando Democrat says that he is in favor of net neutrality and that his alliance with the telecom industry is a coincidental case of "strange bedfellows."
"I say in the letter that I support the policy of net neutrality. I don't know how I could be more explicit than that," he told HuffPost. "There is a question, though, of how to reach that conclusion, and it's a legitimate question. My own feeling is that we should not allow a matter like this to be resolved by regulation, because regulations can be changed very easily. We saw this all the time with the Bush administration. I think it is preferable to have the principle of net neutrality enshrined in statute."
First, a primer on how we got here: In 1996, the Telecommunications Act updated the original 1934 Communications Act, New Deal legislation that prevented monopolies from dominating the means of communication. In 2002, under pressure from the cable and phone industry, the Bush administration's FCC classified broadband as an "information service" rather than as a "telecommunications service." It is, quite plainly, a telecommunications service, but the FCC deemed it otherwise for the sole purpose of avoiding the legislative requirement that neutrality rules be written to protect the Internet from control by major corporations.
By 2005, the phone and cable companies had begun publicly discussing their plans to subvert net neutrality. "Why should [companies] be allowed to use my pipes?" Southwestern Bell CEO Ed Whitacre told BusinessWeek. "The Internet can't be free in that sense ... for a Google or Yahoo! or Vonage or anybody to expect to use these pipes for free is nuts!"
Earlier this year, the Supreme Court ruled that the FCC could not regulate broadband as an "information service." It had already ruled in 2005 that the FCC could classify broadband as a "telecommunications service." So, following the 2010 court ruling, the FCC announced plans to reclassify broadband as what it actually is.
Telecom lobbying went into high gear. The GOP launched an attack arguing that Obama was attempting to take state control of the Internet, as if regulating broadband the way that phone lines are regulated amounted to nationalization.
The telecom lobbying effort soon came to focus around an effort to pressure FCC Chairman Julius Genachowski not to reclassify broadband, but to leave it unregulated until Congress acts. The telecom position has the virtue of making perfect sense on the surface: Congressional action is of course superior to regulatory action, all things being equal.
But all things are very far from equal. Grayson may be the only advocate of net neutrality who thinks that positive action is possible in this Congress or the next. "I don't see any reason to think that won't happen soon," Grayson said of congressional action on net neutrality. "This is obviously a matter with a lot of attention. I don't think [Energy and Commerce Committee Chairman Henry] Waxman or [Communications, Technology and the Internet Subcommittee Chairman Rick] Boucher have ever said they regard this as anything other than a high priority. So I don't see why we need to make this choice. I regard it as a false choice."
The phone and cable lobbies need only find 41 senators, however, to block action. "I think Grayson is mistaken to think that good net neutrality legislation could come out of this Congress. And certainly he's mistaken to think that good net neutrality legislation would come out of the next congress," said Tim Karr of Free Press.
Karr said that he hoped Grayson would note the conservative blogger approval of his move and rethink his position. "Given that Grayson is considered a progressive lion in the House of Representatives, that the people who routinely vilify him are now seeing him as a champion should make him think twice," he said.
HuffPost asked Grayson if he'd support FCC action that would ultimately be substituted by congressional action once Congress got its act together. "I think both is not a viable legal concept. You either have regulations or you have statutes. You literally are not permitted to have a regulation on the same subject as a statute. The statute occupies the field," he said, following up in an e-mail to clarify that regulations are intended to "implement and supplement" statutes.
But net neutrality advocates cite the 1996 telecom law and the 2005 Supreme Court decision to insist that the FCC already has the statute it needs to write regulations. "The history of policymaking in regard to this isn't in issue. Court decisions time and against have maintained that the FCC is in it full right to classify its authority over broadband Internet connections. There is no legal argument to be made against that unless you want to reverse Supreme Court findings. So I really don't know where any of that is coming from," said Karr.
He and Marvin Ammori, a law professor at the University of Nebraska and a former consultant for Free Press, both dismiss Grayson's argument that regulations aren't useful because a GOP administration could reverse them.
"What he's implying is that Republicans actually do what they want to do and implement the policies they want and Democrats don't," said Ammori. "It sounds like they're unwilling to change regulations because they're worried Republicans will change them back... It just highlights that Republicans are willing to change the law and Democrats aren't."
Grayson, advocates of net neutrality note, prides himself on being a "Congressman with guts" and shouldn't shy from a fight with the telecoms. "If I were Alan Grayson or someone else, I would want the net neutrality rule in place at the FCC so that when the Republicans are in power they'd have to affirmatively change the rule and there could be a political fight and argument once the time comes," said Ammori.
Ammori and Karr pushed back hardest at Grayson's claim that the telecom industry supports net neutrality. Both, in fact, laughed out loud at hearing it. "What we hear from them is that they're in favor of net neutrality, as well. It's actually hard to find someone who isn't in favor of it. To the extent that we get any information from them, they never say they're against net neutrality," Grayson said. "I have no idea why they feel the way they do, but politics makes strange bedfellows. I know why I want it. I don't know why they want it."
Ammori said that any lip service the telecoms give to net neutrality is belied by their actions, included the reported deal being negotiated between Google and Verizon. "If they supported net neutrality, we'd have it by now," he said. "They've spent hundreds of millions fighting against net neutrality... This is part of their pitch: 'We don't plan on blocking anything on the Internet. We just want the right to do so'... He's essentially crediting their PR claims."
Trusting the telecom industry would be a dramatic mistake, Sen. Al Franken (D-Minn.) argued in a keynote speech before the Netroots Nation conference in July, calling net neutrality "the First Amendment issue of our time." Electing progressive Democrats requires an open Internet so that supporters can trade information and make donations online, going around the corporate dominated media and party structure. Grayson, in fact, has been one of the biggest beneficiaries of online politics, raising millions from a national web following. Without net neutrality rules, broadband carriers could slow down Grayson's donation page and squeeze the life from his political campaign.
"If we don't protect net neutrality now, how long do you think it will take before Comcast/NBC/Universal, or Verizon/CBS/Viacom, or AT&T/ABC/DirectTV, or BP/Halliburton/Wal-Mart/Fox/Domino's Pizza starts favoring its content over everyone else's?" said Franken. "How long do you think it will take before the Fox News website loads five times faster than Daily Kos? "If the Internet -- the tool that allowed this community to come together and become a potent political force -- is under the control of corporate elites, then the netroots can't exist. The progressive movement can't exist. Democracy as we know it can't exist."
Yet Grayson is not the only Democrat, by far, to have signed the FCC letter. "Why have so many Democrats taken the telecom postion?" wondered Ammori. "It has more to do with just the way D.C. is broken and the way elections are funded and the way the D.C. game is played than it does even with net neutrality or any other issue."
UPDATE:
Google is denying that it made a deal with Verizon to create pay tiers on the Web. A Google spokesperson said in an email to Computerworld, among other sites:
The NYT is quite simply wrong. We have not had any conversations with Verizon about paying for carriage of Google or YouTube traffic. We remain as committed as we always have been to an open Internet.