House Republicans could now make it tough for FCC Chairman Julius Genachowski to follow through on his ambitious National Broadband Plan and clarify the commission’s authority over the Internet. Some supporters of the chairman have lamented that he did not move on Title II reclassification soon enough, given that he had three votes for his “third way” plan as well as backing from the administration for the network neutrality rule expansion and codification that hinges on establishing clear authority for those regulations.
But Genachowski pledged early on that he would solicit information from the public and industry and act only after weighing that information, and ultimately saw a possible solution in seeking direct and unambiguous guidance from Congress. Given the talk of compromise that filtered out of FCC-brokered meetings on a legislative solution, there appeared to be reason for hope that such a solution was possible.
After Republicans en masse and a quarter of Democrats in the House made it clear they did not like the “third way” proposal of applying only some common carrier regs to broadband access, deferring to Congress would have been the least contentious course, and one that could have reduced the legal challenges sure to follow whatever the FCC does.
But politics intervened. The net neutrality legislation was being brokered by a top Democrat, a victory Republicans were not about to hand to the other side on the eve of an election. Then there were those who did not want their fingerprints on a bill that might seem like regulation of the Internet.
So where are we? The FCC is working on various options, including Title II and finding the authority under the Title I information-service classification. Republicans would go ballistic if the chairman attempted Title II. Top contenders to head the House Energy & Commerce committee have all opposed it.
The current best option appears to be finding the authority under Title I, or deferring to Congress to tell the FCC how much broadband access regulating it wants the agency to do. While nothing is likely to happen before next year, the chairman could schedule something for December.
The good news is that, as far as anyone can tell, there is no flood of blocking and degrading by ISPs that calls for emergency measures. Even some net neutrality supporters concede there is little evidence of the discrimination the proposed regs are intended to prevent.
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