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The Mythical 'Reality' of the FCC's Net Neutrality Campaign

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To a certain degree, in fact to a great degree, the ability to succeed in as mushy an arena as politics is the ability to construct a perception that differs from reality. It's what Federal Communications Commission (FCC) Chairman Julius Genachowski is trying to do now with his proposed Net Neutrality order. The Commission is scheduled to vote on a Net Neutrality rule on Dec. 21.

Arguments over the differences and similarities between perception and reality have gone on for centuries. Those engaged in the commentary include figures as dissimilar as 18th century philosopher Immanuel Kant, who wrote about the difference between our perception of reality and reality, or Dr. Phil McGraw, who in his series of Life Laws, proclaimed, "There is no reality, only perception."

Count Genachowski as a follower of Dr. Phil. Right now is his best shot at creating a formal Net Neutrality rule. He needs the votes of the two other Democratic commissioners, Michael Copps and Mignon Clyburn. At the same time, he wants the blessing of AT&T, mistakenly thinking it will provide him some political cover for a hotly contested issue. It won't. AT&T might offer tepid praise for a tepid rule, but will then slam and/or sue the Commission and complain to Congress when the company feels like it. Genachowski's diplomacy will have been wasted.

Genachowski is doing his best to create the perception that the compromise he forged is the best arrangement that could be made, and that any attempt to upset that arrangement could result in the death of a Net Neutrality rule. Copps and Clyburn, both strong advocates of an open Internet, are the targets of the campaign to create the aura of inevitability.

There are two steps to constructing the perception that Genachowski wants. The first is to portray his draft as something on which everyone can agree. He made the circulation of the draft order a big deal, making a speech at the FCC to announce it. Normally, the circulation of draft rules doesn't get that kind of send off.

In his speech, Genachowski said: "I am gratified by the broad support this proposal has already received this morning -- including from leading Internet and technology companies, founders and investors, consumer and public interest groups, unions, civil rights organizations, and broadband providers."

To buttress the claim, the FCC sent around to reporters a sheet of quotes purporting to show that everyone was on board. The document was like a list of quotations from movie critics about a new film. It had a number of industry quotations and some from public interest groups, including Public Knowledge. That was on Dec. 1, the day Genachowski gave his speech.

Two days later, the other shoe dropped. The Hill newspaper ran a story about a letter Rep. Joe Barton (R-TX), the senior Republican on the House Energy and Commerce Committee, wrote to Genachowski saying that all was not quite right.

In the letter, Barton said there were some "disparities" between the actual statements of support and the quotations used by the FCC in its support document. He included a side-by-side comparison of the statements from AT&T, CTIA and NCTA which showed "the actual quotations and the omissions" from the FCC document (seen at the end of the letter) and the full statements.

Imagine for example, the ad for a new film reading, "The film was a delight." However, the full quote would be: "The film was a delight if you consider sitting through two hours of torture a delight." Like that.

For the record, the statement of my day-job employer, Public Knowledge, was subjected to the same treatment. PK was quoted as supporting the action. PK supported the fact that a draft order was circulated, but said the order should be strengthened, as PK President Gigi Sohn has outlined. Wireless provisions should be stronger, "paid prioritization," should be unreasonable and definitions should be clearer.

Clearly, the "support" for the Genachowski draft is much thinner than the agency would like to acknowledge.

In addition to creating the perception of inevitability, the other factor needed is to put the pressure on potential dissenters not to screw up the deal. Former FCC Chairman Michael Powell, now an industry spokesman through the Broadband for America front group, put the issue squarely when he said at an event last week: "Mr. Copps has to ask himself, are you gonna be the guy who blows it all up?" To do so, Powell said, would be "scuttling an opportunity for President Obama."

It's touching that Powell would care about Obama's Net Neutrality agenda. At the same time, it is important to realize that Genachowski's draft is built around a draft bill from House Energy and Commerce Committee Chairman Henry Waxman (D-CA) that AT&T supported, but which was never introduced because House Republicans wouldn't agree to back it. It was, however, entered into the FCC record of the Net Neutrality proceeding. The Waxman bill was a decent first step as a legislative compromise, but it was nothing like a full-fledged FCC rule should be. There was lots to be strengthened in the Waxman draft, particularly in the protection for those who get to the Internet by wireless networks. That weakness continues in the FCC proposals.

Powell's psychological gambit is to pressure Copps into dialing back his efforts to strengthen Genachowski's draft order into something resembling a more robust Net Neutrality rule. His tactic is a version of the old Congressional adage (attributed to legendary House Speaker Sam Rayburn), "If you want to get along, go along."

Thankfully, Copps isn't a "get along" type of guy. In a speech the day after Genachowski's, Copps came out against some of the weaker parts of the rule which would prohibit "paid prioritization" and "managed services," two loopholes that could scuttle today's Internet, and for correcting the FCC's past mistakes by putting broadband service back under the consumer-protecting umbrella of more comprehensive and legally sound Title II of the Communications Act.

Copps is not easily intimidated. He has staked out a strong position on an open Internet several times, and has even called the FCC under Genachowski "toothless." Doubtless, he will push for major changes, and Clyburn will push for adjustments as well. Will their advocacy "blow up" Net Neutrality? Only if Genachowski allows it. As chairman, he can pull the order back at any time and can certainly threaten to do so.

On the other hand, if he does, Genachowski will show the ultimate weakness and the rest of his tenure will be conducted under a cloud. Copps and Clyburn, who had her own strong statement, should push for the most they can get, and then determine whether the final product is worthy of support. Anything the Commission does is going to be slammed by the House next year, so it's not as if a stronger order will enrage the Republicans any more than the weak draft already has.

Even if he's not looking forward to Congressional interrogations, Genachowski shouldn't take it personally. The incoming chairman of the Commerce Committee, Rep. Fred Upton (R-MI), made some of the same statements about grilling another government appointee, Environmental Protection Agency (EPA) chief Lisa Jackson as he has about Genachowski.

The bottom line is that the threat of the deal blowing up is as hollow as the case for widespread support.

In the classic Western movie, The Man Who Shot Liberty Valance, the editor of the town newspaper makes this observation: "When the legend becomes fact, print the legend." Printing the "legend" in this case means accepting that Genachowski's Net Neutrality draft can't or shouldn't be strengthened because of the "strong and wide" (to use the FCC's term) support it has.

It would be better to print the facts. The support is neither strong nor wide, and attempts to make the order stronger should be welcomed, not discouraged, to provide the most protection for everyone who goes online and for the future of an open Internet. That's a reality worth defending.

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