We may all be forced finally to understand what Net Neutrality is -- after we lose it

Is Chairman Julius willing to stand up to the onslaught,
both public and back-channel, of the telecom industry?

by Ken

You don't know how much I've been trying to duck writing about Net Neutrality. And for a while there it looked like I wasn't going to have to. Just when it looked like FCC Chairman Julius Genachowski, one of the few Obama executive appointments greeted with something like cheer by progressives, was prepared to stand by and let yet another Obama campaign promise, in this case to stick up for Net Neutrality, go down the drain, he seemed to have seen the light. And now he's facing an onslaught of pushback from the mighty telecom industry.

Most of us probably aren't going to fully grasp the concept of Net Neutrality -- basically that the Internet is open to all users and content providers on an equal-opportunity basis -- until we lose it, which as of now is looking like it could be, well, anytime now. And then we'll notice that in matters of access, for both content providers and subscribers, it means a level playing field, irrespective of size and especially financial clout. Carriers are supposed to be just that, carriers, not censors, and not online real-estate packagers, determining (perhaps based on, say, money?) whose content gets what kind of access to content consumers.

You may recall a Federal court ruling that seemed to say that the FCC had no power to set any kind of regulations for the Internet. The thing is, it only seemed to say that. What it was really saying, in line with a previous Supreme Court ruling, was that since the FCC says it has no regulatory power over the Internet, it doesn't.

And it's all based on an interpretation by, of all fonts of wisdom, the Bush regime FCC! You remember the Bush regime FCC, surely? Chairman Michael Powell, and his successor, Kevin Martin? Men who never found a moneyed interest they weren't eager to grovel to, and somehow got it in their heads, with their fellow Republican commissioners, that that was actually their job, and thought of the commission as not so much a regulatory agency as an irregulatory one?

In the face of extremely murky statute and statutory definitions, the Bush regime FCC made a decision to classify the Internet in such a way that it was not subject to FCC regulation. (Surprise!) The Supreme Court ruled that this was a reasonable interpretation of the above -- not necessarily the only reasonable interpretation, but nevertheless a reasonable one, and therefore up to the FCC and not the courts.

At this point, all the Obama FCC had to do was say, sorry, we the FCC got it wrong before, but now we the FCC are going to get it right. It didn't require any new action by Congress. So why was Chairman Genachowski saying that the FCC wasn't going to do anything? (Our friend Jason Rosenbaum covered this background pretty neatly in a Seminal post, "Obama Administration to break promise and cave to telecoms, leave the Internet unprotected?")

There was an uproar of sorts from those to whom an open Internet matters, and Chairman Julius seemed to get the message. The FCC, he seemed to be saying, was indeed going to exercise regulatory authority in the interest of preserving Net Neutrality.

And the stooges of the telecom industry, the whole bloody Right-Wing Noise Machine (with Rush and Glenn leading the gleeful charge, claiming the government was going to take over the Internet), went into high gear. Our indefatigable colleague Tim Karr of freepress.net reports:

Today, AT&T is targeting blue dog and CBC Dems in the House to sign the attached letter. It warns FCC chairman Genachowski not to pursue a Title II authority the agency needs to stop phone and cable companies from blocking our access to online content.

This could push Genachowski back into the fold with the phone and cable lobby and kill hopes for Net Neutrality protections this year – or ever.

We have to fire a warning shot across the bow of Dems who are considering a sign on. We could really use the help of one and all on this to let these Dems know that capitulation is unacceptable. Here’s what’s happening:

1. Already the GOP leadership is spreading lies about Net Neutrality – calling it “a government takeover of the Internet:” http://voices.washingtonpost.com/posttech/2010/05/republican_lawmakers_tell_pres.html

2. They’re following the lead of Americans for Prosperity and Grover Norquist who’ve just received phone and cable money to launch and ad blitz targeting key electoral areas and rile the right with lies about Net Neutrality: http://seminal.firedoglake.com/diary/47073

3. This rhetoric is patently false but is already seeping across the echo chamber into the mainstream: http://www.savetheinternet.com/blog/10/05/13/million-dollar-ad-blitz-kill-net-neutrality

4. Last year we saw 72 Dems sign on to a letter generated by the phone and cable lobby. It was intended to scare Genachowski from even considering a proceeding on Net Neutrality, something he pledged to do after Obama made this a priority of his Internet policy. After netroots pressure a few Dems (including Jared Polis) realized their mistake and retracted their signatures: http://www.dailykos.com/story/2009/10/16/794171/-Boulder-Congressman-comes-out-against-the-Internet

5. Democrats need to hear that signing this most recent letter has similar political consequences. The letter asserts that “the policy consequences of reclassifying broadband and regulating it under Title II could be severe: reduced broadband investment, less economic stimulation, and fewer jobs.”

6. We have found none of these claims to be true but rather the opposite. Taking Net Neutrality out of the network doesn’t make economic sense. According to a recent economic study by NYU’s Institute for Policy Integrity, Net Neutrality “produces billions of dollars of free value for the American public.” http://arstechnica.com/tech-policy/news/2010/01/new-study-no-net-neutrality-means-weaker-internet-economy.ars

7. And AT&T is loath to mention that it made considerable network investment when it had to abide by Net Neutrality conditions, and invested considerably less when it didn’t. As a requirement of its 2006 merger with BellSouth, AT&T agreed to operate a neutral network. AT&T’s network investments increased immediately following the imposition of the Net Neutrality merger condition and continued to rise over the two years of the merger agreement. When the neutrality condition expired on Dec. 29, 2008, the company sharply reduced its investment: http://www.savetheinternet.com/blog/09/10/20/att-boss-asks-employees-fake-it

Tim adds: "Rep. Jay Inslee (D-WA) has offered a counter-letter for sign on. I have attached it here. It’s quite good. If Dems are wavering on the issue we should push them in the direction of Inslee and away from the AT&T draft being circulated by the Republican leadership, and the telco lobby. We need to make champions out of reps like Inslee, Markey, Eshoo and others who are taking the principled stand here – an example others in Party would be good to follow."

Here's the "counter-letter":

May XX, 2010

The Honorable Julius Genachowski
Chairman
Federal Communications Commission
445 12th Street, SW
Washington, DC 20554

Dear Chairman Genachowski,

A free and open broadband platform has transformed the ways Americans, learn, interact, and do business. As legislators committed to expanding access to open, affordable, world-class broadband networks, we have a very strong interest in promoting policies that can support these goals. To that end, we write in strong support of your recent proposal to modernize broadband policy by establishing a sensible, stable and sustainable legal framework under Title II of the Communications Act. This measured approach will ensure that the National Broadband Plan can be implemented in a timely manner and deliver the social and economic opportunities carried by new technology to all Americans.

The recent court decision in Comcast v. FCC has undermined the legal basis for broadband policy under Title I of the Communications Act. This jeopardizes widely supported policies to deploy broadband networks to rural, low-income, and disabled Americans. Further, the court’s decision rescinded the FCC’s authority, under the Title I framework, to protect consumers and promote infrastructure development on the dominant communications network of our time. Clearly, this outcome is not sustainable.

We believe it is prudent for the FCC to pursue this course of action in a manner that is designed and implemented to ensure that broadband innovation remains a powerful engine of economic growth. We note that your proposal solely seeks to provide a light regulatory touch to the physical networks that connect consumers to online products and services, and only apply a limited number of Title II provisions. Additionally, this approach does not seek to regulate the content and applications that make up the consumer experience of the Internet. It is both proper and fitting to have public policies that oversee critical infrastructure to achieve the goals of the nation. The path you have chosen is well-reasoned, appropriate, and consistent with the law.

We look forward to working with you as the FCC brings this issue of jurisdiction to resolution. We may then get to the real work of implementing broadband policy to serve all Americans.

Sincerely,