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http://news.cnet.com/8301-13578_3-20005834-38.html?part=rss&tag=feed&subj=News-PoliticsandLaw

May 24, 2010 9:46 PM PDT
Congress rebukes FCC on Net neutrality rules
by Declan McCullagh

The Federal Communications Commission's plan to impose Net neutrality regulations just became much more difficult to pull off.

A bipartisan group of politicians on Monday told FCC Chairman Julius Genachowski, in no uncertain terms, to abandon his plans to impose controversial new rules on broadband providers until the U.S. Congress changes the law.

Seventy-four House Democrats sent Genachowski, an Obama appointee and fellow Democrat, a letter saying his ideas will "jeopardize jobs" and "should not be done without additional direction from Congress."

A separate letter from 37 Senate Republicans, also sent Monday, was more pointed. It accused Genachowski of pushing "heavy-handed 19th century regulations" that are "inconceivable" as well as illegal.

This amounts to approximately the last thing that any FCC chairman, at least one concerned with his future political prospects, wants to happen on his watch. Not only do Monday's letters inject a new element of uncertainty into whether the FCC will try to repurpose analog telephone-era rules to target broadband providers, but they also sharply increase the likelihood of the process taking not many months but many years.

"Questions about the FCC's legal authority should be decided by the Congress itself, and not by applying to the Internet a set of onerous rules designed for a different technology, a different situation, and a different era," AT&T's senior vice president for legislative affairs, Jim Cicconi, said Monday.

Last month, a federal appeals court unanimously ruled that the FCC's attempt to slap Net neutrality regulations on Internet providers--in a case that grew out of Comcast throttling BitTorrent transfers--was not authorized by Congress. The opinion called the FCC's claims "flatly inconsistent" with the law.

Supporters of Net neutrality say new Internet regulations or laws are necessary to prevent broadband providers from restricting content or prioritizing one type of traffic over another. Broadband providers and many conservative and free-market groups, on the other hand, say some of the proposed regulations would choke off new innovations and could even require awarding e-mail spam and telemedicine identical priorities.

For a day or so earlier this month, Genachowski seemed to be wavering, and perhaps even favoring an approach that would have left broadband services unregulated. But after pressure from liberal advocacy groups, the FCC announced plans on May 6 to resuscitate its Net neutrality rules through a legal dodge that, agency lawyers claim, stand a better chance of surviving an inevitable legal challenge.

It's true that President Obama campaigned on a platform that included Net neutrality, and through a representative recently reiterated that he is still "committed" to the idea.

It's also true that no FCC chairman ever starts a fight with Congress during the budgetary process unless there's a very good reason, and preferably very good odds of winning. Genachowski's private-sector experience as general counsel and chief of business operations for IAC/InterActiveCorp has presumably made him aware of when it's time to cut your losses and change the topic. How about those new iPhone early termination fees, for instance?

Which means that, unless something unexpected happens, the fight over Net neutrality will shift a few blocks down Independence Avenue from the FCC to Capitol Hill. (In an editorial Monday, The Washington Post called for just that.)