Net Neutrality Struggle Hits Tipping Point

07/05/2010 05:12 am ET | Updated May 25, 2011

The Net Neutrality game just got a whole lot more interesting. Until a couple of hours ago, the talk of reclassifying broadband Internet access into a more legally defensible regulatory bucket was primarily limited to public interest groups like ours. Tech companies, even those who support Net Neutrality, didn't want to go there. The Commission said nary a word. The big telecom and cable companies put the kibosh on the idea whenever they had a chance.

What changed was a little letter that went over to the Commission from Rep. Henry Waxman, chairman of the House Commerce Committee and Jay Rockefeller, chairman of the Senate Commerce Committee.

Just like that, all the talk of "reclassification" went from being the province of those at the bleeding edge of the debate to the mainstream of the debate. The chairman said that in considering all "viable options" of how to respond to the Comcast court decision, the FCC could also include on that list "a change in classification" as long as it was a "light regulatory touch" type of change.

That last bit is important, because "reclassification" is the big sticking point in the debate over how to treat the broadband services that connect residential customers to the Internet. Since 2005, the FCC has considered those services under the nebulous "Title I" of the Communications Act, which sets out some broad national goals, but provides no consumer protections and is subject to every court challenge.

The alternative is what is known as "Title II," or a common carrier-like regulation. Under that regime, which is how the FCC regulated in the past, Internet access companies would have to follow rules banning discrimination and would have other obligations. There's an easy way to do this, and a hard way. The Congressional leaders wanted the easy way -- the "light touch" wouldn't presumably include price controls and a lot of the other underbrush in the law.

This letter could be the tipping point in getting Prince Hamlet of 12th (SW) -- the location of the FCC hq -- off the dime. Now he knows that he's got Congressional leadership cover. Now those companies wary of making a splash (unlike big telecom and cable companies, who make a big splash whenever they feel like it without fear) can come out from behind the bushes or wherever they were hiding and endorse a couple of committee chairman while helping Genachowski decide on the policy option they thought all along was correct.

The game for weeks has been for Genachowski to see how much political cover he would have to do whatever it is he wants to do. Hundreds of thousands of netroots letters help. One letter from two pivotal Congressional committee chairman help more. If this letter doesn't seal the deal for the FCC at least to consider the possibility that the regulatory structure that got shot down by the U.S. Appeals Court, D.C. Circuit on April 6, doesn't work, then nothing will. I wouldn't bet my house on it, but I would bet the car (which, full disclosure, has 100,000 miles on it.)