Can Net Neutrality Be Salvaged? Should It?

A unanimous decision by a three-judge panel of the D.C. Circuit Court of Appeals appears to have dealt a severe blow to Federal Communication Commission Chairman Julius Genachowski’s to codify and expand the FCC’s enforcement of network neutrality on the Internet. The idea of expanding non-discrimination rules, especially extending them to cover the wireless Internet, isn’t dead, but the FCC is going to have to work a lot harder to make it happen. But strangely enough, its best chance may be to save the most controversial part of Genachowski’s program, net neutrality requirements for wireless carriers.

In a sense the decision was the result of a rash decision by the Bush Administration FCC. After Comcast was caught clumsily throttling bandwidth used by the BitTorrent file sharing protocol, the FCC moved to sanction the cable operator under its informal net neutrality rules, even though Comcast by then had long ceased messing with BitTorrent. (FCC Chairman Kevin Martin was no big fan of net neutrality regulation, but he really didn’t like Comcast.)

When Comcast appealed the FCC’s wrist-slap penalty, the Genachowski position was left to defend a relatively weak case. In the end, that may not have mattered much because the judges flatly rejected the crux of the FCC’s argument that even though Congress may  never have given it explicit authority to impose such regulations, it has “ancillary authority” to do so under the 1934 Communications Act. The FCC could try to appeal to the Supreme Court, but if I were the Solicitor General, I’d advise Genachowski to save his time and the public’s money. Not only did the FCC lose in a forceful opinion signed by three of the D.C. Circuit’s most respected judges, but the decision was consistent with a long string of legal setbacks the FCC has suffered every time it has tried to expand its reach without congressional approval.

Another theoretical out for the FCC would be to follow the advice of some of the more ardent exponents of net neutrality, such as Free Press and Public Knowledge that it reclassify Internet service as a heavily regulated “telecommunications service” rather than as a largely unregulated “information service.” But this is unlikely. The Obama Administration has not shown any support for such an in-your-face move and, at best, it would just land the FCC in another court fight that it would likely lose.

The FCC’s best chance, and it’s not all that good, is to get the congressional authority the court says it needs. The votes might be there for it, but legislation would have to overcome the fierce opposition of AT&T, Verizon Communications, Comcast, Time Warner Cable, and other carriers. The Obama Administration still has a crowded legislative agenda with climate change, immigration reform, and education and net neutrality may be deemed a fight it doesn’t need.

I generally think there’s less than meets the eye to the whole net neutrality fight. The fact is that alleged violations have been few and far between, and the argument tends to be couched in terms of bad things that might happen. I believe the U.S. badly needs faster Internet service and more access to it, but it’s not at all clear that the imposition of net neutrality regulations is going to help us get it. The amount of effort the carriers are putting into the fight gives me pause–there may be something worthwhile in anything they oppose this energetically–but the fight mostly has a mostly hypothetical feel.

That less true of wireless, where a genuine shortage of bandwidth, which creates a potential for troubling discrimination, is likely to persist for the foreseeable future. Unlike landline Internet, wireless data services are already heavily regulated and the FCC may have a clearer path of action. It has already imposed network neutrality conditions on one big block of 750 MHz spectrum purchased by Verizon Wireless in 2008.

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