A Tea Party Hit on Net Neutrality

In that genre of political theater that is a political debate on what is already a foregone conclusion, yesterday's high-profile hearing on Net neutrality was a flop by almost any measure. The House Energy and Commerce Committee gathered its technology subcommittee to give a final airing to a resolution of disapproval, introduced by Republican Rep. Greg Walden of Oregon, that would annul the Federal Communications Commission's December decision to extend a modest proposal enforcing open transmission of Internet traffic by network providers.

Walden's hearing was an attempt to make seem sensible the argument that requiring Internet service providers not to discriminate against websites or applications based on, say, whether they're Comcast's video service or Netflix's or Joe's Start-Up Streaming would destroy the Internet economy, leaving no incentive for the people who operate networks. That argument misfired, though, with the testimony of Tom DeRiggi, the owner of RapidDSL, a small ISP that operates out of Boyds, Maryland. DeRiggi was there to play the part of the small-business owner who would be crippled by what the FCC has passed on neutrality. "All of us could probably live with the rules," admitted DeRiggi.

But no matter. Walden, the tech subcommittee's chair, has been on a tear to fight back against neutrality, part of an effort to align himself with the anti-government fervor of the Tea Party. In Nashville last week, Speaker John Boehner seconded Rep. Marsha Blackburn, who describes neutrality rather nonsensically as a scheme by Barack Obama to censor the Internet. Boehner wanted a bite at that apple. "Right now, freedom and free expression are under threat by a power structure in Washington populated by regulators," Boehner told the National Association of Religious Broadcasters. "We see this threat in how the FCC is creeping further into the free market by trying to regulate the Internet. Network neutrality, they call it." And the FCC's compromise? "As far as I'm concerned, there's no compromise or middle ground when it comes to protecting our most basic freedoms." Boehner promised to use any tool in their toolbox to undo what the FCC has decided. Boehner calls Walden his "go-to guy" and trusted him to handle his transition.

And so, Walden, facing yesterday a witness table consisting of a pro-regulation business professor, a consumer advocate, an entrepreneur, the wobbly DeRiggi and a telecom analyst who talked in dense jargon about starving the network, tried out the "search neutrality" argument that has gained popularity in anti-neutrality circles, building on a growing wariness in the political world about the reach of Google, a sometime advocate of neutrality. Riffing off Walden, Rep. Steve Scalise, a Republican from Louisiana, waved around an iPad to ask Robin Chase why it's wrong for ISPs to discriminate on content but OK for Zipcar, the car-sharing service she founded, to buy premium ads that appear on the top of Google's organic search results.

Not finding much traction with their assault on online advertising, House Republicans tried another tactic: arguing that Internet incumbents like Chase's Zipcar and Google were hypocritical in deciding that the rules of the road under which their businesses took hold were too loosey-goosey just as other upstarts are attempting to get their footing. Rep. Ed Markey, a Democrat from Massachusetts, challenged the premise: "Neutrality" was the guiding regulatory principle of the Internet until the 2005 Brand X ruling by the Supreme Court backed up the Bush-era FCC's decision to exempt high-speed Internet providers from the rules that govern phone lines. Added Chase, she got in on the early years of Internet innovation. The cable and telephone duopolies that rule Internet service in the United States are only beginning to think through how they can extract money from the fact that they have little meaningful competition.

So what was this? Rep. Anna Eshoo, a Democrat from Silicon Valley and the ranking Democrat on the subcommittee, offered a concise diagnosis: "I think there's a virus here in Congress. And it really is not about net neutrality." She went on, "I think it's about any kind of regulation, and whether government agencies have authority to carry out rules through their regulations. I think that's really what's at the heart of this thing."

None of which to say that everyone who has lined up against Walden's resolution of disapproval is in love with how the Federal Communications Commission process actually turned out. The commission more or less exempted mobile from its rules, and that criticism came up. Derek Turner of Free Press, a citizens' advocacy group, complained that the FCC put itself on shaky legal footing by basing its rules under Title I of the Telecommunications Act, the same so-called ancillary jurisdiction rejected by a federal court in April, rather than fighting the fight of deciding that the Internet should be regulated just as landline telephones and other common carriers are, under the act's Title II. AT&T's Jim Cicconi gave his company's blessings to the outcome of the FCC process. What's done is done. The FCC could have taken the more troubling route, from the telecom's perspective, of abandoning Title I and declaring the Internet a highly regulable medium. Cicconi was, said Markey, gamely "walking the tightrope."

FCC Chair Julius Genachowski's reluctance to draw fire and the historic rapaciousness of the telecom companies, AT&T foremost among them, are what makes the Net-neutrality rules promulgated by the FCC the tolerable option many stakeholders are willing to settle on at the moment. They hope to finally move on to other things. Spectrum allocation needs to be addressed. Public-safety networks need to be brought into the 21st century. After five years, all involved are weary of the fight. Net neutrality introduces uncertainty into the market, goes the argument, but there's no denying the uncertainty of throwing this process back open again.

In polite discourse in Washington, everyone is a proponent of the free and open Internet, a global network on which anyone can connect a device or strike it big. (Which is how these things are often framed; the most fervent hope of anyone who gets online is to become a Googlenaire.) The political competition is to line up your set of facts with the notion that anyone with a bright idea in the future will be able to use the Internet to share it, or build it, or profit from it without someone more powerful crushing the dream. The FCC process popped up a compromise of light-touch regulation that no one is totally happy with but that many in the tech-policy realm are ready to live with in the hopes of being able to finally talk about something, anything else.

But as for theater, in the end, Walden redeemed a shaky performance by going out with a big final number. The House Energy and Commerce subcommittee passed the resolution on a 15 to 8 vote, and it heads to the full committee. No one imagines that it has much chance for success in the Senate, and neutrality cases are already heading to the court. But the point was made that somehow the more we talk about the future of the open Internet, the less we seem to agree.

Disclosure: I once worked for Rep. Henry Waxman, the ranking Democrat on the Energy and Commerce Committee.

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