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Technology: Net neutrality rules survive, for now

November 10, 2011 | 12:11 pm

FCC Chairman Julius Genachowski
As expected, the Senate defeated a resolution Thursday that would have disapproved of the Federal Communications Commission's Net neutrality (a.k.a. "open Internet") rules, which are due to go into effect Thursday. The vote was divided along party lines, with 50 Democrats and two independents aligned with the party voting against the resolution and 46 Republicans voting for it. (One senator from each party missed the vote.)

The Obama administration had threatened to veto the resolution anyway, so there was no chance it would have become law. Nevertheless, the whole exercise was instructive for at least a couple of reasons.

First, it showed that telecommunications law has become a partisan issue, like so many other things. Republicans have never been eager to regulate, at least not where companies are concerned, but members of the GOP caucus have been willing to do so in telecommunications because of the dearth of effective competition in certain markets. That lack of competition is still apparent in residential broadband services, where most Americans have no more than two options: the local phone company's DSL service and the local cable TV operator's cable-modem offering.

But the idea of preventing those operators from taking advantage of their duopoly to restrict consumers' choices and pick winners on the Web has become so closely associated with President Obama, it's become a symbol of big-government intrusion and job-killing regulation. So Net neutrality falls neatly into the usual paradigm: Democrats want to adopt rules to prevent potential abuses from occurring, and Republicans say there's no point in regulating when there's no evidence that the market can't police itself.

I could go off on a tangent about where jobs are being created in the Internet economy -- not among the broadband providers that would be regulated but among the sites, services and application developers that would be protected by the regulation -- but I'll refrain.

The second thing worth noting is that the defeat of the resolution won't necessarily keep the rules alive. There are at least three court challenges: one by Free Press against the carve-out for mobile broadband services, and one each by Verizon and MetroPCS against the rules in general. The latter hit the rules in their weakest point: the FCC's questionable statutory authority to regulate broadband services.

The court hearing the Verizon and MetroPCS appeals -- the Court of Appeals for the District of Columbia -- is the same one that threw out the FCC's attempt to enforce a previous set of Net neutrality principles. In that earlier decision, handed down in April 2010, a three-judge panel held that the statutory authorities citied by the FCC weren't sufficient to support the regulation of an "information service," which is how DSL and cable-modem services have been classified by the FCC since the mid-2000s.

Some argued that the FCC simply hadn't done a proper job demonstrating that the federal Communications Act did, in fact, authorize such rules. The order the FCC adopted in December goes to great lengths to point out various provisions of the law that, in the view of the FCC's Democratic majority, support its power to adopt open-Internet regulations.

What the commission stopped short of doing, though, was declaring broadband access services to be "telecommunications services" that Congress subjected to a wide array of federal controls. Those rules were originally written for phone companies that had a monopoly over their local markets. FCC Chairman Julius Genachowski floated a proposal to reclassify broadband services but subject them to just a portion of the regulations that phone companies faced, but that move has drawn stronger opposition from the industry and its allies on Capitol Hill.

If the courts rule the FCC exceeded its authority in adopting its current rules, that may lead the commission (if it's still under Democratic control) to reclassify broadband, re-enact the rules and start the fight over again -- first in Congress, then in the courts. In the meantime, House Republicans may try to use the annual appropriations bills to stop the FCC from enforcing the rules by blocking the commission from spending any money to do so.


A primer on Net neutrality

Senate rejects attempt to overturn Net neutrality rules

Waxman's last-minute Net neutrality bill hits a GOP wall

Dueling Hollywood voices over Net neutrality

-- Jon Healey

Photo: FCC Chairman Julius Genachowski. Credit: Christopher Powers / Bloomberg

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