New Congress could reboot net neutrality debate

by Scott M. Fulton, BetaNews

When the Democratic Party pulled off what television commentators were earlier referring to as the "equivalent of an inside straight" by recapturing majorities in both houses of the US Congress, expectations quickly arose for a sharp U-turn in the legislative agenda. Multi-year funding for the wars on terror and in Iraq, continuations of Republican tax relief plans, and hard-line policies against assistance for illegal immigrants, seemed to lose all momentum, as the entire agenda of the country's foreign and domestic policy would now come under intense public scrutiny.

With critical issues affecting the safety and economy of the nation taking center stage -- pushing flag-burning and pledge-speaking back behind the curtain -- it may be hard to spot the issue of telecommunications reform, which in a normal year might actually garner enough attention to be a campaign issue.

There have been no normal years since 2001, with this year the least normal since that most dreadful one. In the year to come, the pending merger between BellSouth and AT&T Inc., not one year after its merger with former Baby Bell SBC Communications, which was just about to gain legislative approval until the mid-term elections happened, could be the ticket that gives telecom reform at least a part of the spotlight.

But the 109th Congress is not over - not for a handful of weeks, anyway. Until next January, Republicans remain in charge. They may have the opportunity to use what is typically known as the "lame duck session" to accelerate the passage of legislation that could pave the way for nationally-licensed broadband ISPs, which could have substantially free reign over the levels and classes of service they offer their customers.

Yet to accomplish this, Republicans would have to spare some floor time that would otherwise be devoted to debate over the minimum wage, immigration legislation, tax reform, the continuation of John Bolton as UN Ambassador, the nomination of Bob Gates to succeed Donald Rumsfeld as Defense Secretary, US policy toward Iran and North Korea...and the aforementioned wars.

Amid all that, a floor vote in the Senate could enable a national licensing act to just slip through, forcing the next Congress to debate ways to undo what they may perceive as damage to the principle of network neutrality.

Last March, a bipartisan telecommunications reform bill that had arguably gained bipartisan support in both houses, sponsored in large part by Sen. Ron Wyden (D - Oregon), was indefinitely tabled by the leadership of both the House and Senate committees on commerce. Its replacement was a hastily drafted substitute bill, penned by House Energy and Commerce Committee Chairman Joe Barton (R - Texas), with the key objective to specifically enable cable TV providers (CATV) to apply for national licenses that could permit them to do business in areas where other broadband providers may already have acquired local or municipal licenses.

But the bill, which came to be known as the Communications Opportunity, Promotion, and Enhancement Act (COPE), became most notable for what it omitted: any provisions that would prohibit CATV providers from creating premium tiers of service for their customers. Under such a system, larger quantity content providers such as Google and Yahoo could be allowed access to faster transfer rates, though at higher costs. On the flip side of the equation, end customers in rural areas and in non-upgraded urban areas could be charged more for the same service that suburban customers receive for discounts.

As the bill's opponents projected, the content providers themselves could conceivably be permitted to pass on the costs of premium service to their customers, for what they phrased as "private taxation of the Internet."

Sen. Wyden's now-trashed bipartisan bill contained clear net neutrality guarantee provisions; and over the vehement objections of the Democratic leadership in the House Commerce Committee, Republicans -- with some Democrats' support -- managed to push the COPE bill through committee and onto the House floor, where it passed in June.

"The proposed legislation would allow the creation of the broadband equivalent of gated communities in our towns, our communities, our countrysides, as well as on the Internet," objected ranking member Rep. John Dingell (D - Michigan), when the COPE bill was first introduced in committee last March. "Public rights of way would be hijacked for the profits of large private companies, which are, under this draft, freed of important obligations to serve the public. I support fair competition, but this bill does not create fair competition. We should not write legislation at the expense of leaving some our communities, or some of our citizens, behind. And we should not write legislation at the expense of a free and innovative Internet."

Supporters of the Barton bill, including its principal author, argued it would increase competition in broadband Internet service by reducing government regulation - with "net neutrality" qualifying as one example of that regulation.

"Cable service is interstate in nature, as the Supreme Court has long recognized," stated Rep. Barton last March. "Most video programming carried on cable systems is produced by national networks, and distributed across state lines to a national audience. Cable systems are also carrying increasing amounts of Internet-based video, voice, and data services across state, as well as national, borders.

"Today, there are thousands of local franchising authorities, each imposing disparate restrictions on the provision of cable services in its particular franchising area. The requirement to negotiate such local franchises, and the patchwork of obligations local franchising authorities impose, are hindering the deployment of advanced broadband networks that will bring increasingly innovative and competitive services to the consumers. The United States is not even in the top 10 nations in terms of broadband deployment right now," Rep. Barton continued, adding that his bill sought "to strike the right balance between national standards and local oversight."

Perhaps more as an effort to earmark congressmen who opposed popular telecom regulations than to seriously amend the bill, ranking Telecommunications and the Internet Subcommittee member Rep. Ed Markey (D - Mass.) crafted an amendment to the Barton bill that defined net neutrality, and would have explicitly prohibited the practice of creating variable pricing tiers for differing levels of service.

"We should be doing everything we can in public policy to ensure that this successful Internet model continues to drive innovation, economic growth, and job creation," pronounced Rep. Markey when the Barton Bill was first introduced. "Instead, the proposed bill before us effectively condones online discrimination, and then ties the hands of the agency from promulgating any guidelines to address it.

"The Barton Bill actually says to the FCC that it can never adopt rules to protect the Internet experience for the millions of entrepreneurs and consumers who rely upon it," Rep. Markey continued. "Think about that. If there's a problem, even if it is widespread or affects a whole class of users, or a whole class of violators, if consumers are being aggrieved on a daily basis, or even if the industry itself feels that certain rules are useful or necessary, the Barton Bill prohibits any rulemaking authority for the FCC on network neutrality whatsoever. Rather, it prefers a case-by-case investigation, and adjudication of violations. Does anyone here remember how long it takes the FCC to deal with individual complaints? It often takes years. And this bill is supposed to prepare us for the 21st century broadband future. This is efficient government? I don't think so."

After a long and partially eloquent debate, the obviously intentionally contradictory language of the Markey amendment ended up backfiring. It was defeated in early June, by a "kill debate" vote of 269-152.

As Dingell's and Markey's message became obscured by a combination of Republican obstruction and Democratic self-destruction, they launched their own blog, called

Its first mission is already a success: over a million signatures collected nationwide in support of a non-binding petition opposing legislation that would enable service class designations - often couched by the co-opted engineering term "QoS" - for premium content providers.

Though not a petition for a referendum, the SaveTheInternet campaign may have been responsible for just enough of a tipping of the scales to postpone a Senate vote on the House bill until after the mid-term elections last Tuesday.

As a result of those elections, the roles of powerful committee leaders and vocal minority underdogs will be completely reversed. Before Rep. Nancy Pelosi (D - Calif.) assumes the Speaker's podium of the House in January, she is said to be choosing new committee and subcommittee leaders based on their current rank. As a result, Rep. Dingell -- whose support of the original Wyden bill was unceremoniously cast aside by Rep. Barton in a procedural move -- will likely become the new Chairman of the House Energy and Commerce Committee, with Rep. Markey the chairman of its Internet subcommittee. The tables will have completely turned.

With the fate of the COPE bill currently in the hands of Sen. Ted Stevens (R - Alaska), the outgoing chairman of the Senate Commerce Committee and Rep. Barton's Senate counterpart, there isn't much that a House committee ranking member -- as Rep. Dingell will continue to be for a little over two months -- can do.

But he's making his play anyway: On Wednesday, Rep. Dingell announced he has sent a letter to the FCC asking it to refrain from signing off on the AT&T/BellSouth merger, until further debate on media ownership rules is held when the 110th Congress convenes in January. Both companies are significant stakeholders in CATV, and their merger could lead to regional monopolies that language in the current COPE bill would prohibit.

If the FCC waits for Congress, Rep. Dingell's hope may be, Congress will have to wait for the FCC. Once the new Congress convenes, he told Broadcasting & Cable, on the premise that the "Merger of Bells" agreement is on hold, both houses will have an opportunity to draft substantially different legislation. "I think we're going to try to do that [bill] again in a responsible way," he remarked, "including taking a hard look at how the FCC is administering the law, particularly with regard to making spectrum available to fire and public safety."

Whether the FCC will be willing to wait while Congress re-examines the role of the FCC, however, may be less certain - more like a bet on a royal flush than an inside straight. Commission members are still appointed by the Executive Branch, and may find themselves in outright confrontation with the new Congress. But the Commission is split even today over whether the merger should indeed go through, with three attempts to vote on the merger having been held up.

In light of the FCC's indecision and Congress' redeployment, net neutrality may very well have a new lease on life.

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