And yet, here we are, a year and a half into the Obama presidency, and net neutrality is no closer to being encoded in federal regulation than it was when George W. Bush was president. Just this week, the F.C.C. asked for comments on two of the issues surrounding net neutrality, issues that have been hashed over for months. It was an obvious effort to push any decision beyond the midterm elections.
The F.C.C.’s punt doesn’t begin to get at the turmoil. When Google and Verizon, a month ago, put together a well-meaning proposal for enforceable net neutrality rules, the two companies were vilified by the net neutrality purists — because they wanted to exempt wireless. “There was universal condemnation of Google for abandoning its ‘don’t be evil’ ethos,” said Art Brodsky, the chief spokesman for Public Knowledge — the very group that was leading said condemnation.
In the wake of the Google-Verizon announcement, the F.C.C. abruptly called off talks among the various parties aimed at coming up with net neutrality rules. The talks have since been restarted, more or less, though without the involvement of the F.C.C. Yet even if the talks succeed, the resulting framework wouldn’t have the force of law, so it is hard to know precisely what they would accomplish.
And last but not least: thanks to a court decision in March — a decision that resulted directly from the F.C.C.’s effort to punish one big Internet service provider, Comcast, for violating the principle of net neutrality — the agency’s very authority to regulate broadband is in doubt.
Surely, this has to rank as the Mother of All Unintended Consequences: there is an outside chance that in its zeal to make net neutrality the law of the land, the F.C.C. could wind up as a regulator with very little to regulate.
“Net neutrality arguments have been reduced to bumper stickers,” sighed Craig Moffett of Sanford C. Bernstein, Wall Street’s premier telecom analyst. Mr. Moffett’s point is that like most political slogans that wind up on bumper stickers, the issue isn’t nearly as simple and straightforward as it might appear to be at first. Net neutrality is, in fact, incredibly complicated.
Data networks, after all, have to be managed. The engineering is complex. The capacity is limited. Inevitably, some form of prioritization is bound to take place. Rules also have to be created that will give companies the incentive they need to spend the billions upon billions of dollars necessary to extend broadband’s reach and improve its speed, so we can catch up to, say, South Korea.
Since that ruling came down in March, the agency has been going down two tracks at the same time. It has been desperately trying to find a way to re-establish jurisdiction over broadband services, while at the same time continuing to push for net neutrality. It has become a very complicated dance.
In May, for instance, Mr. Genachowski proposed that the F.C.C. could use Title II of the Telecommunications Act to re-establish jurisdiction. (Trust me: You don’t want to know the details.) But Title II brings with it all sorts of onerous, outmoded regulations better suited to the age of rotary telephones — including price regulation. Although Mr. Genachowski vows not to impose such regulation, who is to say that his successor will agree with his “forbearance” approach (as he calls it)?
And no matter how strenuously Mr. Genachowski vows not to impose price regulations, the Internet service providers have made it plain that they will sue to prevent the F.C.C. from asserting Title II jurisdiction over broadband. It is not inconceivable that the providers will win. At which point, the F.C.C. might as well close up shop.
It is this strange stew — uncertainty over jurisdiction, combined with a campaign pledge to establish net neutrality — that explains the recent Google-Verizon proposal. The truth is, virtually every player involved wants the F.C.C. to have oversight over broadband services. Otherwise, chaos is likely to ensue.
That’s why, at the request of the F.C.C.’s chief of staff, Edward P. Lazarus, representatives from all the sides of the issue, including the Open Internet Coalition, convened to see if they could come up with a framework for net neutrality they could all agree on — and that the F.C.C. could supervise. When those talks bogged down, Google and Verizon decided to come up with their own plan, thinking that they could help lead the others into the light.
Instead, they were slammed. Why? Because even though the framework they came up called for no discrimination of Web sites, for transparency and for all sorts of good things when it came to the kind of broadband that came in through a pipe, it exempted wireless broadband.
Google’s rationale — and, without question, Google was the one that compromised — is that wireless was still too new, and the capacity constraints were still too severe, to impose net neutrality, at least at this point. To put it another way, Google was looking at the issue realistically, instead of theologically.
So there we now stand. Net neutrality is in limbo because the public interest purists believe that any compromise is a sellout, and because the F.C.C. so badly shot itself in the foot by pursuing the Comcast case. It is difficult to see how we’re ever going to get net neutrality rules.
Then again, maybe the current snarl isn’t such a bad thing. “If everybody just walked away, the probability of anything bad happening is quite small,” said Mr. Moffett. I agree. Consumers have come to expect an open Internet, and companies will violate net neutrality at their peril. That is just the way the Internet has evolved.
Without the F.C.C., the Federal Trade Commission would probably wind up serving as the Internet’s sheriff, using antitrust law as its guide and bringing tough enforcement actions. Nobody in the industry wants that.
