Net neutrality is going to be in limbo for the next few years as the myriad of lawsuits make their way through the courts. I’ve written other blogs looking at this issue and, at least in my opinion, it’s unlikely that the FCC ruling will make it through the courts unscathed. Not only is there a question about if they have the authority to order what they did (I happen to think they do), but the whole process included irregularities compared to the normal FCC process. This was not one of those dockets where the FCC issued an idea, got comments, and then made a decision. There were numerous twists and turns during the process and some changes in thinking at the FCC. The irregularities of the process make the ruling vulnerable to court challenges.
If we had a functional Congress this could all be fixed with a very simple new bill. At the end of the day the FCC’s net neutrality decision boils down to three basic tenets that can all be captured in just over a page of text. It would be easy for Congress to pass a bill that laid forth those same principles and then concluded by giving the FCC the authority to enforce them.
Such a decision would cut through all of the red tape, and a Congressional order doing this would establish the FCC’s clear authority to keep the Internet open. Such a law would avoid the whole mess of Title II and forbearance from old rules that don’t really have anything to do with the Internet. Such a Congressional law could avoid the whole issue of treating ISPs and broadband as a utility.
There were several laws floating around Congress last year that did half of what was needed. They basically said that the Internet needs to be open and that nobody should be able to do things that endanger that openness. But every one of these draft bills had the fatal flaw of not giving the FCC the authority to enforce the net neutrality concept.
The bills that I’ve seen are just window dressing. They would let Congress go on the record as being in favor of net neutrality, without actually having done anything to make net neutrality the law of the land. The net neutrality bills I saw didn’t have any more practical application than the laws that Congress is always passing to celebrate things on a given day. We need net neutrality to be more important than National Friendship Day (August 2).
I don’t normally get too political in the blog, but this is not really a partisan issue. Congress as a whole, both parties, has increasingly gotten in bed with corporations, and those corporations that fund the incredibly expensive process of getting elected and staying in office now have most of the influence on what laws get passed.
And so Congress is loathe to pass a net neutrality bill that is not favored by the large cable companies and telcos that contribute to them. The carriers don’t want to be regulated in any manner (as is probably true of all large companies), and so it’s incredibly unlikely that our Congress, in this current environment, is ever going to establish telecom laws with the teeth needed to make them effective.
There has been talk over the last few years that Congress is working on a new telecom reform law. It certainly is time for one. The last Act was passed in 1996. While that doesn’t sound like very long ago, the telecom world has changed in drastic ways since then. 1996 was the height of AOL being the predominant broadband provider in the country. The broadband technologies of DSL and cable modems were just hitting the markets and there were no broadband customers using them at the time. Businesses thought that a T1 was blazingly fast access to the burgeoning Internet.
So the rules created then could use a fresh look, because many of them are already obsolete. But it seems doubtful that a similar kind of law can be passed today. The Telecommunications Act of 1996 opened up the large telephone companies to competition and they absolutely hated everything about the bill. The 1996 Act also changed a number of rules for cable companies that they did not like.
Today there really isn’t much practical difference between large cable and telephone companies, but we treat them very differently. And now that wireless data is growing, wireless providers should be considered in any new rules. One has to wonder if Congress has the gumption to rein in all of these companies under one set of sensible regulations. My fear is that any new telecom law would do just the opposite and that they would mostly relieve all large companies from being regulated – because corporations seem to be far more in favor right now than people.