As if Federal Communications Commission (FCC) Chairman Julius Genachowski didn't have enough trouble with smart lawyers figuring out how to challenge the FCC's Net Neutrality order in court, now he's got an additional party in the fray -- the Tea Party, bringing their own brand of insight and activism to telecommunications policy.
It's a difference of scale and scope -- navel vs. naval.
All around Washington, members of the telecommunications lawyer clan are doing a good bit of navel-gazing about the Net Neutrality order released by FCC just before Christmas. They are delving deep into the subtleties of Sec. 706 (a) of the Communications Act, working out intricate arguments on FCC authority and policy.
At the same time, the Tea Party is planning a naval barrage-like offensive to counter the Commission's order. Twice between Christmas and New Year's, the Tea Party put the FCC in the sights of its 16-inch guns, sending emails to supporters to rally support for a campaign that would "Protect Our Internet Voice." The headline in the email reads, "The Tea Party Must Stop the Governments (sic) Freedom Grab!"
Because in Telecom World nothing is simple or easy, both of those visions of the world will have a big part in determining the fate of the Commission's order. The legal part will take some sorting out, as attorneys consider the merits of challenging and/or defending the substance of the order, the Commission's authority to do what it did and dozens of other issues. That debate will wind its way through the courts for a while.
The Tea Party position on things, however, are much less nuanced. "Government Grabs The Internet (Are Guns Next?)" is the headline accompanying a graphic of a black hand coming out of a computer screen with the Obama campaign logo visible on the screen.
And then it gets scary. Using the construct of German pastor Martin Niemöller, who famously decried the lack of protest in Nazi Germany, the Tea Party ginned up its own paranoid fantasy:
They came first for the Health Insurance, and I didn't speak up because I wasn't a Doctor.
Then they came for the Internet, and I didn't speak up because I wasn't a Blogger.
Then they came for the Guns, and I didn't speak up because I wasn't a Gun Owner.
Then they came for me, and by that time no one was left to speak up.
We Thought We Were Free.
On its website, the Tea Party proclaims: "Tea Party To Fight Internet Takeover. We Shall NOT Back Down."
Then there's the "blast fax," to Congress, for which Tea Partiers have to pay. It asks, in part, that members of Congress: "We the people demand you stop the socialist agenda, halt the takeover of the Internet now."
The message continues:
We are demanding Congress to stop the Government from ruling the Internet. The People Reject Government control of the Internet! No doubt this will anger the Washington Socialists, but it will save America!
We are asking you be a hero, not a zero and join the fast growing ranks of the Tea Party movement. If you are sick of dirty and corrupt politics, then we are imploring you to stop Government rule of the Internet and to protect it!
If all of this sounds like overheated rhetoric, get used to it. The Tea Party has lots of friends in the new Republican House, none more friendly than Rep. Marsha Blackburn (R-Tenn.), who is on the House Communications Subcommittee. Blackburn is on record already as opposing the "FCC powergrab," has introduced legislation blocking the FCC from enacting Net Neutrality rules, and called the FCC's Net Neutrality actions a "fairness doctrine for the Internet." At the same time, however, Blackburn has been critical of the FCC as part of the National Broadband Plan for not doing enough to protect copyrights online, which is clearly outside of the Commission's authority. At the same time, Blackburn has also been critical of the FCC taking actions needed to protect copyrights online, saying she didn't want the government to assign value to specific content.
Blackburn will be one of the keynote speakers at this year's State of the Net conference, put on by the Congressional Internet Caucus Advisory Committee. That should be one of the highlights of the event.
Her Tea Party counterpart on the Senate side, Sen. Jim DeMint (R-S.C.), a member of the Senate Commerce Committee, has also vowed to block the FCC's efforts.
As it happens, the irrational hatred of the FCC is something the Tea Party has more or less in common with more conventional, corporate Republicans like incoming House Commerce Committee Chairman Fred Upton (R-Mich.) and Sen. Kay Bailey Hutchison (R-Tex.). While the corporate Republicans might not buy off on the "socialist" agenda rhetoric, they do buy into the pleadings of companies like Verizon and AT&T, which have opposed Net Neutrality rules for years, AT&T's recent support of the FCC notwithstanding.
Unlike some issues in which the House Republicans might have to smack down the Tea Partiers, like voting on a debt ceiling, going after the FCC is an easy one with which to make common cause. Unlike Democrats, who habitually take pleasure in blowing off their base, Republicans take the more common-sense approach of rewarding those who support them.
The debate is just getting started, and it is one that Democrats who support an open Internet should relish. Sure, there will be bumps along the way, like the misleading poll issued late last year by the Republican-leaning Rasmussen Reports polling firm. That poll got headlines saying that only 21 percent of people supported Net Neutrality. Of course, the results were based in part on the misleading poll question, "Should the Federal Communications Commission regulate the Internet like it does radio and television?" No one has suggested the FCC regulate the Internet like it does radio and TV (and the poll shows that people like regulation of radio and TV. Go figure.)
In fact, no one has suggested the FCC "regulate the Internet," one of the central talking points of those opposed to the FCC. This is not the right-wing bogeyman "Fairness Doctrine" returning to life. That long-neglected policy encouraged, but didn't require, broadcasters to provide balanced coverage of issues. Net Neutrality is just the opposite -- it keeps everyone -- government and companies that own networks -- out of making just those kinds of content judgments. The Tea Party should love Net Neutrality.
What the FCC wants to do, even in the vague way it ended up doing it, was to reassert its traditional jurisdiction over telecommunications services so that it could protect consumers.
The alternative, stripped of its "government takeover" rhetoric," is to say that the telephone, cable and particularly wireless companies should have complete freedom to do what they want online to pick favorites, control consumers' online experience and turn the Internet into their own private network by destroying the open, innovative Internet.
It means consumers are captive in a broadband market in which there is little competition, as cable companies and telephone/video providers can raise rates at will. Will it be long before U.S. carriers copy British Telecom and start their own "fast lane" service?
MetroPCS has already decided to test the limits of the FCC's extremely lax rules on the wireless sector. The company is making the FCC immediately look weak by coming out with a new data policy that allows subscribers to have "unlimited" access to some video, but not to others, depending on the source. It's exactly what a neutral, open Internet shouldn't be, but there's not much to be done because the FCC, at AT&T's urging, left the wireless world open to this sort of manipulation.
If Genachowski thought he could escape congressional and Tea Party-driven scrutiny by forging this weak "compromise" because AT&T was nominally on board, he certainly miscalculated. As a result, Genachowski and his colleagues will end up spending quality time before House interrogators to defend a rule that has loopholes larger in some respects than the rule itself. It's just a shame that the Commission doesn't have something stronger to defend that would be equal to the vociferousness of the attacks.
Follow Art Brodsky on Twitter: www.twitter.com/artbrodsky