With GOP gains, what next for net neutrality at FCC?

Some net neutrality backers question if the FCC will still move forward with new rules

Republican gains in Congress with Tuesday's elections put a controversial and largely partisan debate over proposed network neutrality rules back in the hands of the U.S. Federal Communications Commission, but some backers of new rules have their doubts about the agency's willingness to move forward.

The Republican takeover of the majority in the U.S. House of Representatives -- with many new lawmakers fiercely antiregulation -- likely signals an end to serious attempts to pass net neutrality legislation prohibiting broadband providers from selectively blocking or slowing Web traffic. But the FCC, where Democrats still hold a 3-2 majority, has an open proceeding soliciting comments on whether to adopt net neutrality rules.

But what will the FCC do? With Democratic majorities in Congress and the FCC over the past two years -- and support from President Barack Obama -- the FCC issued a notice of proposed rulemaking in October 2009, but has not moved past the comment-seeking stage.

An FCC spokeswoman declined to comment on where the agency was headed with net neutrality following Tuesday's elections.

"The ball is clearly in the FCC's court now," said Art Brodsky, communications director for Public Knowledge, a digital rights group supporting new net neutrality rules. "[FCC Chairman Julius] Genachowski won't get any help from Congress. He has to do it, or it won't get done. Will he? I'm not optimistic based on past performance, but I hold out some small hope."

The new Republican majority in the House will likely hit the FCC with a series of hearings and information requests, predicted Brodsky and Joel Kelsey, political advisor to Free Press, a media reform group that supports new net neutrality rules.

Despite an antiregulation message from many newly elected Republicans, Free Press and other net neutrality supporters have long argued that new rules would preserve the way the Internet has always operated. A Supreme Court ruling and an FCC policy decision in 2005, combined with an appeals court ruling earlier this year on the FCC's authority to enforce informal net neutrality principles, have led to questions about the future of the so-called open Internet.

"You're not talking about applying new, onerous regulations on companies and asking them to comply with a bunch of red tape," Kelsey said. "You're essentially preserving the status quo."

But the new Republican lawmakers aren't likely to see the issue the way Free Press does. "Will they sacrifice the policy on the alter of politics?" Kelsey said. "Maybe. That's our job at nonprofit public interest groups ... to explain that to newly elected members of Congress. That's also the job of the FCC -- if they're serious about standing behind what they've consistently said is good policy, then they're going to have to fight for it."

The FCC has the votes to move forward with the long-debated net neutrality rules, Kelsey added. "They're going to have to fight for an agenda they care about, or decide they don't care about it," he said.

Opponents of new net neutrality rules saw the election in a different light. While net neutrality wasn't a major issue in the election, U.S. voters clearly elected candidates who promised to fight regulations, said Hal Singer, managing director of Navigant Economics, a business consulting firm.

In the days before the election, 95 Democratic candidates running against incumbent Republicans or for open seats signed a pledge to support net neutrality. All lost their elections, Singer noted.

"One can infer from the election results that net neutrality is not consistent with the nation's attitude toward regulation," he said. "The candidates who embraced net neutrality likely embraced other extreme, interventionist policies, and for that, they were punished."

Genachowski's proposal earlier this year to reclassify broadband as a regulated service as a way to pass net neutrality rules would be an "economic and legal trainwreck," added Everett Ehrlich, a business economist and president of ESC, a business consulting firm.

"Net neutrality has been described as a solution in search of a problem," he said. "But now it's a solution in search of a constituency."

If the FCC acts on net neutrality against the wishes of House Republicans, there could be a majority vote "not to fund the FCC," Ehrlich said.

Instead of focusing on net neutrality, the FCC should work on freeing up additional mobile spectrum and on implementing its national broadband plan, released in March, Singer said. The broadband plan has gotten bipartisan support in Congress, Ehrlich added.

But Andrew Jay Schwartzman, policy director at digital rights group Media Access Project, said he's optimistic about the FCC moving forward on net neutrality rules. The FCC is an independent agency, and past chairmen there have moved forward on "politically difficult" policies, Schwartzman said.

"It's not supposed to do exactly what Congress wants," he said. "It's supposed to make up its own mind."

Schwartzman said he expects the FCC to pass new net neutrality rules soon, maybe even before the end of the year. "The legislative option has run its course, and I think the chairman knows the ball is now in his court. I think he's getting encouragement from the Democratic members of Congress to move forward."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's e-mail address is grant_gross@idg.com.

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