Advocates for net neutrality are, to use a technical term, freaking out today, and it's justified, if this report in today's Washington Post is to be believed. The gist is that FCC chair Julius Genachowski is on the cusp of announcing that he won't seek to reclassify broadband Internet as a common carrier service, as advocates have been pushing him to do. What that means is we're left with an FCC almost completely unable to regulate the modern communications landscape.
This is a case of ever-shrinking jurisdiction. The Bush-era FCC, in a blaze of deregulatory fervor, decided that broadband Internet wouldn't be treated like, for example, the telephone, where there's an expectation that telecom infrastructure is open and designed to best meet the needs of the greatest number of people. Instead, broadband became an "information service" regulated with only the lightest of touches. When the FCC did hold telecoms responsible for breaches, they did it by extrapolating existing authority under the law.
But then, in April, they were told by the D.C. Circuit that they actually lacked the jurisdiction to tell Comcast that they couldn't filter BitTorrent traffic. In the wake of Comcast v. FCC, advocates argued that the time was well nigh for Genachowski to simply reclaim broadband as a common carrier service. The alternative was to wait for Congress. But there were fears that that the telecoms hold too much sway on the Hill and that Congress, given an inch of the Internet to regulate, will take a mile. If the Post's reporting is correct, Genachowski is choosing a third way -- simply hanging on to whatever authority the courts and the law have left to the FCC, and trying to hold the telecoms accountable that way. If that's indeed the FCC's plan, it's kinda laughable. It's like switching to a knife in a gun fight you're already losing.
--Nancy Scola
