Last month, a federal appeals court ruled that the FCC had limited authority to regulate broadband services, and that it could not require broadband providers to adhere to network neutrality rules under its general authority to regulate telecommunications.
The ruling is a result, in part, of the FCC's decision in the 2002 Cable Modem Order "to treat broadband providers not as common carriers subject to regulation under Title II of the Federal Communications Act, but rather as 'information services' which would be subject to much less stringent regulations." The most straightforward response to this ruling, and the one that would ensure the ability of the FCC to enforce net neutrality, would be to revisit that 2002 decision, and treat broadband providers as common carriers and thus regulate them under their Title II authority.
But sources within the FCC say that FCC Chair Julius Genachowski is "leaning toward keeping the current regulatory framework for broadband services in place." Which would mean much weaker
[I]n recent discussions, the sources said Genachowski has indicated he is less inclined to define broadband as common carrier service like regular copper wire phone services, which are clearly under the FCC’s oversight. The chairman was concerned that a move to that regime, called Title II, would be overly burdensome on carriers, they said. Yet he was also concerned that the current framework would lead to constant legal challenges to the FCC’s authority every time it attempted to pursue a broadband policy....
Specifically, he is exploring a legal push under the current legal framework for broadband, which is under Title I, that would make possible the FCC’s push for a new net neutrality rule and reforms under a national broadband plan, the sources said. That could include a legal push in courts where it would assert that the FCC has the mandate from Congress to deploy broadband to all Americans in a timely manner....
The companies that are most affected by the debate are the network operators such as AT&T, Verizon and Comcast which provide the transportation of Web traffic on their networks. They would be cheered by a decision from the FCC to retain its current regulatory structure that is a murkier statute and would make it more difficult for the agency to impose rules on them. And they warn that reclassification of broadband would hurt their businesses.
If AT&T, Verizon, and Comcast prefer to have the current regulatory framework maintained, it's because it makes for an FCC that has weak authority over broadband, and net neutrality could be the cost. Law professor Marvin Ammori explains what could happen (based on some things that already have happened) if the FCC maintains the status quo on net neutrality.
If the Post story is predictive, there is almost no list of "horribles" that are not fair game. I'm listing ten. Most of these "horribles" have actually happened as business practices where the carriers got their way. And media companies are believed to refuse ads or stories that criticize them or oppose their position.
Comcast (or AT&T or Verizon or Time Warner Cable) could do any of the following and the FCC could do Big Fat Nothing:
(1) Block your tweets, if you criticize Comcast's service or its merger, especially if you use the #ComcastSucks hashtag.
(2) Block your vote to the consumerist.com, when you vote Comcast the worst company in the nation. No need for such traffic to get through.
(3) Force every candidate for election to register their campaign-donations webpage and abide by the same weird rules that apply to donations by text message.
(4) Comcast could even require a "processing fee," becoming the Ticketmaster of campaign contributions.
(5) Comcast could reserve the right to approve of every campaign online and every mass email to a political party's or advocacy group's list (as they do with text message short codes).
(6) If you create a small online business and hit it big, threaten to block your business unless you share 1/3 or more of all your revenues with them (apps on the iPhone app stores often are forced to give up a 1/3 or more; so are cable channels on cable TV).
(7) Block all peer to peer technologies, even those used for software developers to share software, distribute patches (world of warcraft), distribute open source software (Linux). In fact, Comcast has shown it would love to do this.
(8) Block Daily Kos, Talking Points Memo, Moveon.org (and its emails), because of an "exclusive" deal with other blogs. Or alternatively, block FoxNews.com because of a deal with NBC and MSNBC.
(9) Monitor everything you do online and sell it to advertisers, something else that some phone and cable have done, with the help of a shady spyware company.
(10) Lie to you about what they're blocking and what they're monitoring. Hell, the FCC wouldn't have any authority to make them honest. The FCC couldn't punish them.
Without 60 votes in the Senate, congressional action on net neutrality is pretty damned unlikely. It's possible that the Supreme Court could overturn the appeals court decision, but that's certainly not guaranteed. The reclassification of broadband by the FCC would be the most effective and quickest solution to ensuring that broadband be brought under strict regulation and that net neutrality remains the rule of the road.
As always, you can go to Save the Internet to ask Chairman Genachowski keep the Internet open and free of corporate gatekeepers.