New Congress Could Reboot Net Neutrality

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 SaveTheInternet.com.

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.