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Internet firms, telcos, politicians ask, 'What next?' as net-neutrality debate reboots

The dreadfully bureaucratic word "reclassification" has been on a lot of lips in Washington since a federal appeals court ruled last week that the Federal Communications Commission had no authority to stop Internet providers from slowing or stopping their users' access to legal sites and services.

Most people seem to accept the logic of the court's ruling, but there's far less agreement over what to do about that. I see four possible options:

1) Nothing. The FCC would confine itself to publicly scolding Internet providers that get caught offering favorable or unfavorable carriage to particular sites or services, and the pain of the resulting bad publicity would force them to correct their conduct--but, since Internet providers have already pledged to abide by net-neutrality principles, this will never come up anyway. (Then again, some Web sites, such as Amazon [PDF], now say they only need rules banning unfavorable treatment; they'd be fine with providers charging them more for faster performance.)

2) Let somebody else solve the problem. Here, the Federal Trade Commission would take over policing Internet providers using its authority to enforce rules against false advertising and abuse of market power. The risk here should be clear enough if you read Ezra Klein's and Steve Pearlstein's coverage of the financial meltdown; if you give companies a chance to shop for a regulator, they will pick the most lenient one, even if that's not the best outcome for everybody else.

3) Have Congress give the FCC specific net-neutrality enforcement authority. Surprisingly enough, some telecom firms, such as Verizon, favor this. The problem here is that it would require Congress to act, act somewhat quickly and do so in an election year. So, um, yeah ... good luck with that.

4) Reclassification. Here's where the chatter has been heating up. As such net-neutrality advocates as Free Press and Public Knowledge suggest, the FCC could--on its own, without a permission slip from Congress--decide that it made the wrong call in the prior decade when it classified Internet providers as "information services" and instead put them under the category of "common carrier" services, as addressed in Title II of the Communications Act of 1934. After doing that, the FCC would then exempt Internet providers from irrelevant regulations--"forbearance," in telecom legalese--leaving only a simple, manageable set of rules in place. (Some ISPs, as you might expect, say things would be a lot more complicated and painful.)

The FCC itself isn't saying much beyond general statements about carefully assessing the implications of the court ruling. My colleague Cecilia Kang spent the afternoon at a Senate commerce committee hearing that featured FCC Chair Julius Genachowski as the star witness--then interviewed him face-to-face afterward--and is still sorely puzzled about what the commission plans to do next.

But that doesn't mean we can't talk about what Congress and the FCC should do next. You tell me--which of the four paths above, or one I didn't think to include, would you like to see the country take?

By Rob Pegoraro  |  April 14, 2010; 6:45 PM ET
Categories:  Policy and politics , Telecom  
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Number 3, modified. Congress should tell the FCC what to do, which I think should be not much.

Congress should set policy. The FCC should not. The FCC should be a traffic cop.

(Generally, Congress delegates too much authority to administrative agencies such as the FCC, FDA, FTC, and hundreds of others so it can avoid making hard decisions and risk not getting re-elected.)

Posted by: Bitter_Bill | April 14, 2010 9:02 PM | Report abuse

#4 all the way.

All it does is restore things to the way they were before the FCC broke it. Justice Scallia agrees, so let's do it.

#1 is no option, because AT&T and company have said quite plainly they want to create toll lanes.

#2 Won't work, because the FTC isn't the expert agency here, and is slow as molasses at enforcement.

#3 is foolish. Of course Verizon wants to go to Congress, because between it, AT&T and Comcast, they frankly OWN Congress.

The law we have now will work for us, if the FCC only allows it to. It doesn't need more authority. Non-discrimination is the basic principle of communications networks, the FCC just needs to enforce the law.

Posted by: DottieBunch | April 15, 2010 10:51 AM | Report abuse

The FTC is ready and willing to take on Internet consumer protection issues. This is good, because it's expert at consumer protection; the FCC isn't. What's more, the fact that the FCC's recently proposed "network neutrality" rules entirely exempted Google (a large political contributor and major lobbying force) when previous versions of the rules did not suggests that the agency may be overly influenced by this large, consumer-unfriendly corporation.

Let the FTC handle consumer protection, the DoJ handle antitrust, and the FCC handle technical issues.

Posted by: LBrettGlass | April 15, 2010 3:45 PM | Report abuse

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