New Congress Could Reboot Net Neutrality

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."

Next: New life for a defeated net neutrality provision