The atmosphere in the Brookings Institution meeting room was electric. It was Sept. 21, 2009 and Julius Genachowski, newly confirmed at President Obama's chairman of the Federal Communications Commission (FCC) was about to give his first major policy address.
All parts of the telecommunications community were there. The room was packed. TV cameras covered the event. Many of those present had supported Obama and the progressive Internet policy he advocated -- a policy Genachowski had written during the campaign.
Word got around that Genachowski was about to announce his support for reversing the long-standing industry-friendly policies that had governed at the FCC. He was going to come out for a free and open, non-discriminatory Internet.
On that day, Genachowski didn't disappoint. He praised the idea of the open Internet. He recognized the threats to the Internet's "fundamental architecture of openness." He proposed to enshrine in FCC rules the four somewhat nebulous open Internet "principles" the FCC had adopted in 2005 which said consumers were entitled to access to lawful Internet content, applications and services, and to attach equipment that didn't harm the network. (The fourth principle said consumers are entitled to competition among network providers, but that one has been largely ignored.)
He also proposed to add to the rules two more requirements. One was non-discrimination --
...that broadband providers cannot discriminate against particular Internet content or applications. This means they cannot block or degrade lawful traffic over their networks, or pick winners by favoring some content or applications over others in the connection to subscribers' homes. Nor can they disfavor an Internet service just because it competes with a similar service offered by that broadband provider. The Internet must continue to allow users to decide what content and applications succeed.
The other principle was transparency, so consumers could know what was happening with their Internet. It was, all in all, a bravura performance, for which Genachowski was justly praised.
And then the roof fell in, and nothing has been the same since. For some, the fact that Genachowski hasn't fulfilled that early promise was due to the decision by the U.S. Appeals Court, which in ruling on the Comcast case in April struck down the Title I authority the FCC had used as a legal basis for the Internet principles the FCC had adopted in 2005.
No doubt, that case presented the FCC with some challenges, in part because it went not only to the FCC's policy on an open Internet, but to the FCC's ability to act on universal service, public safety and a range of other issues related to broadband deployment.
Even though it was obvious to just about everyone at the January 8 oral argument the FCC had a losing hand, it took the Commission six weeks to come up with an alternative -- Genachowski's so-called "Third Way" which was a limited version of a proposal advocated by Public Knowledge and others to reverse the 2005 decision which took broadband Internet access out of the traditional telecom regulation and into the nebulous gray area that the Appeals Court found so objectionable. His proposal came on May 6, the FCC put it out for comment, and nothing happened. The FCC subsequently put out for comment a proposal from Verizon and Google, with the last comments due Nov. 4. That proposal was roundly criticized by open Internet advocates because, among other items, it would segment the Internet into a nominally open wired Internet, but a closed wireless Internet.
The root of the FCC's lack of action, however, isn't the legal challenge thrown by the D.C. Circuit. It's more simple, yet harder to deal with. The problem goes back to a month after that triumphant Brookings speech, when AT&T launched an all-out "shock and awe" campaign against Genachowski. Using its formidable grass roots organization and its more formidable financial stranglehold over members of Congress, AT&T convinced Genachowski and his team, most of whom had not been in Washington for long, that they would be crushed if they attempted Net Neutrality rules. The FCC has been nearly paralyzed ever since. After that, as sort of post-traumatic stress disorder (PTSD) set in. AT&T mounted a follow up campaign in May this year, attacking the "Third Way," locking in the despair of the eighth floor.
It takes a long time to get over PTSD, if one truly ever recovers. But it can be done, little by little. The FCC leadership can start by going back to basics -- back to the Brookings speech in which Genachowski set out, and answered, each of the substantive arguments subsequently thrown against him. Then he has to recognize the firm hand he holds in having two commissioners supporting him and recognize as well that if political forces want to reverse his decision, so be it. That shouldn't stop him and Commissioners Michael Copps and Mignon Clyburn from doing what's best for the American people.
But he has to do it by the end of the year, at the latest. The record will be complete in all of the proceedings. All of the arguments will have been made. The time for inaction and for excuses will have run out.
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