THE BLOG
06/15/2010 05:12 am ET Updated May 25, 2011

Snowepocalypse Now: Senators Back An Open Internet

For Federal Communications Commission (FCC) Chairman Julius Genachowski, Wednesday's hearing of the Senate Commerce Committee was a Snowpocalypse of the best kind.

The occasion was a hearing of the Senate Commerce Committee to discuss the National Broadband Plan with Genachowski. Of course in hearings like this, the senators discuss and the witness listens politely. Hearings like this are the stage for senators to send the public signals of how they stand on any particular issue, in this case it's how to deal with high-speed Internet access.

On one side are those legislators and outside groups, like my day-job employer Public Knowledge, who think Internet access should have some legal protections for consumers. Consumers are now unprotected as a result of an appeals court decision striking down the way the FCC tried to enforce its open Internet policies. On the other side are legislators and telecommunications companies who want no regulation at all.

At the April 14 hearing, Sen. Olympia Snowe (R-ME) returned to the telecom world Wednesday afternoon, schooling her colleagues on the Republican side of the Committee about the history of telecommunications regulation. (It was Snowe, you will remember, who triggered the famous "series of tubes" rant by former Commerce panel Chairman Ted Stevens at a 2006 markup on a telecom bill.)

Snowe also said she and Sen. Byron Dorgan (D-ND), another champion for a free and open Internet, are working to redraft their legislation from the last Congress. But it was her discourse on one of the fundamentals of the Internet that provided a spark at the hearing on the National Broadband Plan.

Others on the Committee, such as senior Republican Kay Bailey Hutchison (R-TX) and Mike Johanns (R-NE) berated Genachowski, issuing dire warnings about how the "legitimacy of the agency" would be compromised if the agency tried to bring some regulatory sanity to the offering of Internet access services, and said that only Congress could make new policy. Snowe provided a valuable and much-needed perspective.

Non-discrimination has existed in telecommunications statutes for 70 years, she said, to ensure against unjust and unreasonable discrimination. "Innovation has been compatible with non-discrimination" until the FCC in 2005 put a stop to it by reclassifying broadband services used to connect to the Internet as "information services," thus freeing them largely from regulatory oversight. She noted that technology evolved, in voice and video, and that innovation wasn't tied to "statutory authority." No one wants to regulate the Internet, she added. We want to leave the Internet as it is.

Snowe, of course, is right. Here's one thing she didn't say, but could have. While all of her colleagues were berating Genachowski for even thinking about bringing Internet access service under some regulatory umbrella without Congressional approval as a result of the decision by the D.C. Circuit in the Comcast case, how many of them complained when the FCC under Michael Powell did the first reversal? How many Senators said that Powell wasn't within his authority to change the regulatory status without Congress? The next one you find will be the first one. It seems as if it's fine for one change to be made to benefit large telecommunications companies without being an insult to Congressional prerogatives, but it's not fine to reverse an ill-considered decision that puts into legal jeopardy not only a non-discriminatory Internet but also support for rural broadband, FCC actions on public safety, privacy and a whole list of other issues.

Committee Chairman John D. Rockefeller (D-WVA) agreed, calling the appellate ruling "disheartening." Rockefeller said he wanted the agency to use "all of its existing authority" to implement the broadband plan. Of course, Rockefeller had a particularly troubling situation the plan isn't structured to help. There was no cellular phone coverage at the recent mine disaster in his state, and Verizon technicians were forced to string wires "to a place they haven't been to." It was "comical to string out wires so rural America can be heard in a genuine matter of life and death," he said.

Unfortunately, there is nothing in the broadband plan, nor in any regulation, that can compel a wireless company to build where it doesn't want to build, whether in West Virginia, or in any other rural state. Rockefeller was right to say that the questions of "light touch" versus "heavy touch" regulation are one thing, but real service is another. Many states have deregulated telephone companies altogether, so there's little leverage for forcing service into rural areas where companies decline to go.

If those senators from rural areas on both sides of the aisle want their constituents to have better service, they will have to do better than simply mouth platitudes. Rockefeller seemed up for a fight, saying that the role of his committee is to protect people, not to protect the companies. Others on the panel, well, their sympathies lie elsewhere.

Genachowski got enough political support from the Democrats on the panel that he should feel secure in moving ahead. Rockefeller, Dorgan and the tech-savvy Maria Cantwell (D-WA) signaled at this hearing that they are in his corner. Communications Subcommittee Chairman John Kerry (D-MA), has said in a statement he believes the FCC should do what's necessary to implement the plan (although he didn't show up at the hearing to say it in person). Others on the panel appeared sympathetic to the FCC's goals, with Amy Klobuchar (D-MN) noting that cybersecurity policy was imperiled also.

The Senators who harp on the FCC's need to go to Congress to reverse a decision the Commission previously made know that Congress will never act in a timely fashion, if at all, to protect broadband consumers. Then again, the issue of the need to protect consumers and promote broadband didn't appear to have bothered them at all.