Over the last few months, things have been looking good for keeping the Internet open to everyone. A little too good, as far as Congress is concerned, which is why members and the corporate lobbyists who write them hefty checks have launched a last-ditch legislative effort to scuttle net neutrality.
Both President Obama and Federal Communications Commission Chair Tom Wheeler have stopped tiptoeing around net neutrality and seem to finally embrace the idea of using Title II of the Telecommunications Act to reclassify Internet Service Providers (ISPs) and regulate them as common carriers, like the phone companies and other public utilities. No preferential treatment to those willing to shell out big corporate bucks for a fast lane.
In early January, Wheeler told a crowd at the Consumer Electronics Show in Las Vegas, "There's a way to do Title II right." And in his State of the Union address, Barack Obama announced, "I intend to protect a free and open Internet, extend its reach to every classroom, and every community, and help folks build the fastest networks so that the next generation of digital innovators and entrepreneurs have the platform to keep reshaping our world."
No doubt those more than four million public comments filed with the Federal Communications Commission in support of net neutrality went a long way toward convincing Obama and Wheeler that the American people have made up their minds. Chairman Wheeler intends to circulate a new plan to fellow FCC commissioners on February 5 with a vote scheduled for February 26.
But all of this apparently sent chills though the new Republican Congress and key segments of a communications industry that as a whole pumps an average $350 million-plus into lobbying every year and spent almost $100 million on the midterm elections. (Comcast, Verizon, and AT&T are three of the nonpartisan Center for Responsive Politics' top 10 corporate lobbyists).
Together, the ISP companies and Congress have come up with a plan to legislatively derail net neutrality that would bring a smile to the lips of Machiavelli.
As Hamza Shaban wrote recently at The Verge:
Simply put, the popularity of net neutrality poses a problem for Republicans. While the GOP maintains a general opposition to government rules in economic life, the principle of treating all web traffic equally enjoys wide, cross-partisan support. As it has become clearer that only new regulation can ensure net neutrality, Republicans risk not only appearing as obstructionists, but worse, obstructionists that side with the likes of Comcast.
So Senator John Thune (R-SD), chair of the Senate Commerce Committee, and Rep. Fred Upton (R-Michigan), chair of the House Committee on Energy and Commerce - the two main committees charged with Internet oversight -- have introduced legislation that on the surface seems to wholeheartedly embrace net neutrality. But at the same time, it gives a big thumb's down to using Title II to reclassify ISPs and effectively neutralizes the ability of the FCC to regulate. Shaban notes, "By avoiding a reclassification of broadband and working to render the FCC impotent, the new Republican Congress suggests it doesn't really want net neutrality. It just wants to look like it does."
According to Matt Wood, policy director of the media reform group Free Press:
The legislation fails at the very thing it claims to accomplish. It prohibits a few open Internet violations but opens the door to new industry abuses. It claims to give the FCC limited adjudication powers but removes the agency's ability to adopt and adapt rules to fit the changing landscape for high-speed Internet access.
What Thune and Upton are actually trying to do is declaw the one agency responsible for protecting the public interest in communications. Having lost their fight against Net Neutrality in the court of public opinion, companies like AT&T, Comcast and Verizon are trying to use fake Net Neutrality bills to end all effective oversight of their anti-competitive, anti-consumer practices.
In addition, the legislation creates loopholes big enough for the ISPs to drive their service trucks through, allowing exceptions for so-called "special services" that easily could guide the way to a two-tiered system net neutrality advocates fight to prevent.
One way you can judge this rather disingenuous legislation is by the company it keeps; backed, as The Wall Street Journal reported by "the top lobbyists for both the broadband and wireless industries."
Former Republican FCC Chairman Michael Powell, now president of the National Cable and Telecommunications Association, long a foe of net neutrality, endorses the idea of the legislation. So does former Republican FCC Commissioner Meredith Atwell Baker (the one who went to work for Comcast shortly after voting in favor of its purchase of NBCUniversal). She's now the president of CTIA - The Wireless Association, and calls the Thune-Upton proposal "an excellent start." Then there's cyber-libertarian Larry Downes of the Georgetown Center for Business and Policy, who's been attacking the net neutrality movement for years. He describes the bill as "short and sweet," listing eight reasons "passage of the bill would most benefit consumers."
No wonder Massachusetts Senator Ed Markey described it as "a legislative wolf in sheep's clothing." Free Press President and CEO Craig Aaron writes that the legislation is "a cynical effort by the cable lobby to prevent the FCC from enforcing the law to keep the Internet open. Why would we trust the fiercest opponents of net neutrality to protect our Internet freedom?"
The Senate Commerce Committee and the House Subcommittee on Communications and Technology held hearings on the same day last week. Subcommittee Chair Greg Walden (R-Oregon) described the purported FCC's net neutrality proposal as a "nuclear option," but in discussing the Thune-Upton draft legislation, ranking member Rep. Anna Eshoo (D-California) said, "What is abundantly clear in the majority's proposal is to purposely tie the hands of the FCC by prohibiting them from reclassifying broadband."
Powell and Baker testified favorably but others, including online retailer representatives Paul Misener, Amazon's vice president of global public policy; and Chad Dickerson, chief executive of Etsy, the on-line arts and crafts marketplace, expressed reservations. "We're concerned," Dickerson testified, "that the proposal does not ban all types of discrimination online."
Some, like Amy Schatz, policy reporter for the technology news website Re/code, believe that the hearings "did little more than confirm that the sides are nowhere close to agreeing on how to resolve the years-long debate."
... Even if Congress were to pass this legislation -- and it's nearly impossible to see how it might do that before the FCC acts next month -- the bill would still likely face a veto threat from President Obama, who has been vocal about his thoughts on what the FCC should do.
No matter the outcome, extensive litigation seems unavoidable. This will wind up in the courts. As Michael Powell said at last week's hearings, "It's not a complete exaggeration to say that in ten years we could still be sitting here."
(You can continue to file your own comments on the net neutrality debate at the FCC website. And the website BattlefortheNet.com will show you how to call the FCC and members of Congress.)