There was a lot of excitement last week over the U.S. Federal Communications Commission's (FCC) proposal to reclassify broadband as a regulated public utility under Title II in the Telecommunications Act of 1996.
Sure, the move is a big deal in the ongoing arguments over net neutrality, but it doesn't come close to settling the issue. Instead, it merely sets up the ground rules for the next phase, an epic legal fight between Democrats, with web companies like Google and Netflix, on one side and Republicans, with telecom/cable providers like AT&T and Comcast, on the other.
It's the lawyers' turn
The first lawsuits are already in the works, and it is in the courts that the immediate future of net neutrality will ultimately be determined. For net neutrality proponents, casting the issue in terms of a regulated utility is assumed to give them stronger legal footing, but their case is by no means a slam dunk on either legal or political grounds.
There is simply so much money at stake that neither side is going to give up easily. We can expect to see prolonged, incredibly expensive court battles, supported with extensive media campaigns on both sides. And I wouldn't count on either side sticking exclusively to the facts when a little obfuscation on this complex issue could garner support.
Worse, even when all the appeals have finally been exhausted, the net neutrality fight still won't be over. Based on ideological issues concerning government control and regulation vs. big business and monopoly power, net neutrality has become a political issue more than a legal or technical one.
Democrats, including President Obama, have largely lined up in favor of one set of corporations—lots of startups but also content providers and web giants like Google, Yahoo and others—supporting their rights to be able to fling as much traffic across the internet as possible without paying extra for the privilege.
Republicans have mostly allied themselves with the telecom carriers and cable companies that want to control the pipes they own without interference, even though much of their growth has come via regulated industries, not open competition.
Given that, the real decisions on net neutrality won't be finalized until after the 2016 elections, when one side or the other may finally have the juice to force through legal, regulatory, or legislative changes to support their stance. And those changes will stay in force…until the winds change yet again in Washington and the opposing side can marshal the support needed to reverse course.
Unfortunately, whatever your opinion on the issue, that kind of uncertainty is not good for anyone. It's easier for carriers to make network investment decisions working with clear rules that they don't like than it is when they don't have a clue what the rules will actually be. Similarly, web companies would rather factor in costs of paying carriers for carriage into their business plans in advance than have those costs dumped on them at the last minute.
Still, with so much at stake, neither side is likely to compromise or give up. So instead of net neutrality, we had all best learn to live with net confusion.