Federal Communciations Commission Chairman Tom Wheeler will be heading to Capitol Hill Tuesday to testify as sole witness at the hearing called by the House of Representatives Subcommittee on Communications and Technology. Republicans will all adopt the position of their leadership, that the FCC should keep regulatory hands entirely off of the internet, arguing that the "full job-creating potential of the private sector, including the Internet" depends upon the complete absence of the federal government.
Democrats, on the other hand, are likely to blast the new rules on which the FCC last week voted to move forward as the beginning of the end of a free and open internet. Consensus is building among Democrats that the FCC will need to act decisively to preserve net neutrality, and that doing so will mean reclassifying broadband companies as public utilities, so that their jurisdiction to regulate the internet will be clearly and legally established. They got an ally in that argument from Tim Wu, the guy who came up with the whole concept of net neutrality. Writing in the Wall Street Journal, Wu provides a simple analogy to make his argument: "Broadband is a utility and ought to be treated as such by the Federal Communications Commission."
Imagine that a private company owned the only bridge into Manhattan over the Hudson River. It isn't hard to see how that would put the owner in a position to extract cash from the rest of the economy, almost like a tax. Another, more subtle effect is the favoring of some businesses over others, distorting competition and innovation in other parts of the economy.That reclassification wouldn't have to mean heavy-handed regulation from the FCC, Wu argues, but rather the opportunity to have "open internet" rules that "prevent broadband providers from blocking or discriminating against certain types of content," but still give broadband the room to make very healthy profits.
Broadband operators today own the effective bridges to the American home, and they have shown an inclination to use that power. Recently, they have induced direct competitors such as Netflix to agree to pay fees to ensure smoother streaming of content to customers, pegging the payments as "contributions" to their networks.
Classifying broadband as a "common carrier" under the 1934 Telecommunication Act would allow the FCC to use the full extent of its authority to prevent broadband providers from extracting tolls that damage the broader economy. It also would allow the FCC to reinstate the "net neutrality" rules that courts have recently struck down.
Convincing a Republican congress that regulation and profits can go together will be an uphill battle, as Tuesday's hearing will likely prove. That means the FCC is going to have to act to make sure the internet doesn't turn into Chris Christie's George Washington Bridge.