The FCC's efforts seem doomed either way. The prospect of reclassifying broadband to give the commission more authority looks tenuous even without a GOP-dominated Congress. If Congress swings Republican after the mid-term elections, the pressure to limit the commission's authority will likely intensify.
Net neutrality's next steps
Public comment on the FCC's proposed rules ends July 15. After that the reply period begins, running until September 10. The public has already sounded off in volume: So far the agency has received 645,000 comments, an FCC representative said Wednesday.
Under the proposed rules, paid prioritization deals considered "commercially unreasonable" could be brought forward on a case-by-case basis for evaluation. Net neutrality supporters like Sen. Al Franken, D-Minnesota, and Ron Wyden, D-Oregon, warn that Internet fast lanes could give an advantage to companies with deep pockets, leaving smaller firms and startups in the dust. This, net neutrality supporters argue, would stifle Internet growth and investment, and frustrate users with slower browsing on smaller sites that can't afford the fast lane.
The proposed rules respond to a blueprint laid out by a federal appeals court in January, after overturning the Open Internet order the FCC issued four years ago. The 2010 order clearly supported net neutrality concepts, calling for transparency from broadband providers and banning them from blocking lawful content and services. But it, too, stopped short of an outright ban of discrimination in transmitting network traffic--a move that spurred concern and debate back then, too. With the FCC considering how to handle paid prioritization, a GOP-controlled Congress in 2015 could thwart net neutrality supporters.
The lawmakers can't stop the FCC from executing its authority. But "Congress can make the lives of the commissioners pretty miserable," said Norman Ornstein, a political analyst at the American Enterprise Institute in a phone interview. "A Republican Senate would probably not be a present for Democrats who are in the majority on the commission during that time."
The National Cable and Telecommunications Association (NCTA), one of the top five lobbying powers on net neutrality, says it has consistently supported an open Internet, including the 2010 Open Internet order. Brian Dietz, an association spokesman, said no cable companies practice paid prioritization, as the incentive for them lies with providing fast access to Internet services for all users. The association opposes reclassification, Dietz said.
The reasons for (and against) reclassification
Reclassification may seem like hair-splitting to laypeople. But in the world of communications, it's of fundamental importance, because of the greater regulation imposed upon "common carrier" services such as traditional phone companies.
The January case brought by Verizon overturned the 2010 rules, on the grounds that broadband providers' classification exempts them from treatment as common carriers. Consequently, some supporters of net neutrality latched onto the idea of reclassifying broadband transmission as a way to boost the FCC's ability to enforce its open-Internet rules in the future. FCC Chairman Julius Genachowski himself had brought up the idea earlier that year.
Sign up for CIO Asia eNewsletters.