Congress punts net neutrality back to FCC

Net neutrality ball is in FCC Chair Genachowski's court

Somewhat predictably, Congress has decided to not do anything about net neutrality.

Somewhat predictably, Congress has decided to not do anything about net neutrality.

Despite garnering some industry support, the net neutrality legislation being drafted by Rep. Henry Waxman (D-Calif.) got shot down yesterday when Congressional Republicans said they would not support it. Waxman had been holding meetings with both consumer groups and telecom companies while drafting legislation aimed at bridging the gap between proponents and opponents of net neutrality.

However, now that negotiations have fallen apart, Waxman has signaled to the Federal Communications Commission that it should act to reclassify broadband services as telecommunications services. In essence, then, we're back to the same point we were at earlier this year when the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC lacked the authority to stop Comcast from throttling peer-to-peer Internet traffic.

2010's Notable IT industry deaths 

Net neutrality refers to the principle that ISPs should not be allowed to block or degrade Internet traffic from their competitors in order to speed up their own. The push for net neutrality began in 2005, when incumbent telecom carriers successfully lobbied the FCC to repeal common carrier rules that required the incumbents to allow ISPs such as EarthLink to buy space on their broadband networks at discount rates. Both Web companies such as Google and consumer groups such as Free Press feared that this would lead to a small handful of large ISPs consolidating power over Internet access, thus giving them the power to slow or degrade competitors' traffic.

The FCC began making headway on net neutrality last year when Chairman Julius Genachowski proposed making two new rules that would bar carriers from blocking or degrading lawful Web traffic and that would force carriers to be more open about their traffic management practices. Any hope of ever enforcing those rules came to a screeching halt this past spring, however, when the Washington D.C. appeals court said that the FCC did not have the authority to regulate ISP network management under its current legal framework.

This left the FCC with three options: It could do nothing, it could wait for Congress to draft network neutrality legislation or it could decide to reclassify broadband services as telecommunications, rather than information services, to gain regulatory authority. Genachowski had initially come out in favor a of reclassification that would exempt ISPs from the majority of common carrier regulations that were traditionally applied to wireline telephone companies. However, Genachowski's plan ran into a torrent of industry and congressional opposition and many began looking toward Congress for solutions.

The leaked draft of Waxman's bill would have essentially followed the model set by Google and Verizon that enforced net neutrality on wireline connections while leaving wireless networks essentially alone. The bill earned a thumbs-up from the broadband carrier-backed NetCompetition.org, which described it as a "sensible resolution," while net neutrality advocates such as the Open Internet Coalition, said they could not support the bill.

With the ball now back in Genachowski's court, it's unclear where he and the FCC go next. This past summer the FCC held closed-door net neutrality talks between major industry players such as AT&T, Comcast, Verizon and Google, but Genachowski called those talks off right before Google and Verizon announced their own framework for net neutrality regulations. Since then the FCC has merely been soliciting public comment on how to best enforce net neutrality standards.

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