Supporters of FCC’s broadband plan looking for room to compromise

Top net neutrality supporters in Congress are hoping to avert an all-out legislative showdown that could result from the FCC’s push to regulate Internet providers.

As the commission under Chairman Julius Genachowski seeks to regain its authority to rein in those companies, a move that is likely to draw tough legal challenges in the coming months, members of Congress this week invited broadband providers to work with them on new regulations, which many lawmakers agreed are inevitable in some form.

The FCC’s need to draft more specific rules governing Internet companies is the result of a federal court decision issued last month. Three D.C. judges agreed that the agency had overstepped its explicit legal bounds when it reprimanded Comcast for throttling access to Bit Torrent, a file-sharing service.

{mosads}The court’s ruling ultimately cast doubt on broad portions of the FCC’s National Broadband Plan, which the commission drafted under the impression that it had some authority to regulate Internet companies. To address that new legal ambiguity, Chairman Julius Genachowski announced last week he would seek a new approach to broadband, regulating those providers with a smattering of rules that already govern phone companies.

Genachowski has stressed the effort will only make permanent a series of powers the commission once thought it had, before the D.C. court ruled otherwise. But Internet providers have almost unanimously excoriated the chairman for what they see as blatant legal overreach, creating the specter of a possible stream of legal challenges to the commission’s move. Others have slammed the regulations wholly as an attempt to usher in net neutrality — the politically touchy principle that all Web traffic should be treated equally.

With many now looking to Congress for clarity, Rep. Rick Boucher (D-Va.) this week stressed a “balance has to be struck” over those changes.

While he told Computer and Communications Industry Association’s annual Washington Summit on Thursday he supported the FCC’s plans, he said a “far better approach would be for Congress to address the subject.” Boucher gave no indication, however, that he and his colleagues would push for a comprehensive rewrite of the 1996 Telecommunications Act that governs
the FCC.

Instead, Boucher implored stakeholders to negotiate over targeted “provisions that could ensure net neutrality and open  Internet and do so in a way that would not inhibit investment.” He also called on broadband companies concerned with the outcome to “come to the Congress and engage us.”

“We could get something done very quickly if there is consensus,” said Boucher, who chairs the House subcommittee that chiefly handles Internet issues. But, he added, “if there is not consensus, we’re not going to be able to act at all, not even in the next four to five years.”

Boucher’s remarks eventually won him some qualified praise from AT&T, one of the companies that has slammed the FCC recently for asserting authority over broadband. In a statement issued Friday, the telecom company said it was “hopeful that all broadband providers can work together with Congress to remove the cloud over the industry by moving legislation now.”

“While we’ve said that we don’t feel that the Communications Act of 1934 is the right vehicle to regulate dynamic 21st century technologies like the Internet, we do feel there are other more effective alternatives to fill the perceived void left by the court decision,” said Tim McKone, vice president of federal relations.

Sen. Byron Dorgan (D-N.D.) seemed to express similar support for a narrowly tailored legislative fix this week, stressing “we don’t need to have a big fight about this.”

“Let’s find ways for us to come together,” he told CCIA on Thursday. “But that ought not deter us from pursuing the ideals of good public policy and trying to get to the finish line.”

However, other members of Congress supporting the FCC’s goals seem to be more hesitant to take on such a politically volatile issue, especially ahead of a tough re-election cycle.

Deciding what power the FCC has and over which kinds of communication companies the agency can exert it means lawmakers would have to choose winners and losers in this dispute, all as millions in lobbying dollars exchange hands. That would occur at a time when much legislation already remains stalled in the upper chamber, where the absence of consensus has become the norm.

“The legislative process in the U.S. Senate is slower than molasses… and that’s talking about how fast it is,” Sen. Mark Begich (D-Alaska), a member of the Commerce Committee, quipped at the CCIA summit on Thursday.

“I hate to say it, but whatever evolves is going to get litigated,” he predicted of the FCC’s plans. “My view is: let’s just see the process unfold a bit more… and then let us have the discussion. If there’s a legislative fix, we’ll have a debate.”

Rep. Anna Eshoo (D-Calif.), who represents a district that includes Silicon Valley, later said an act of Congress might not be necessary, as the FCC has the legal authority to do what Genachowski has proposed.

“I think he’s in the right place, and I dont think it’s necessary for congress to do that,” she told reporters. “Should we be engaged in this? Of course we should, and there should be a very close examination of it so that members not only understand it, but after understanding it, embrace it.”

“But I dont want to see this become tangled in the tall weeds for years to come,” she said.