The U.S. House of Representatives resumed its flight from reality earlier today (April 8) when it voted to repeal the Federal Communications Commission (FCC) rules to mandate an open and non-discriminatory Internet.
What was remarkable about the vote was how the Republicans pushing the legislation managed to at once speak in favor of the legislation as helping small business and innovation, while ignoring the testimony and other advocacy from those very businesses that opposed it.
House Commerce Committee Chairman Fred Upton (R-MI), for example, cited the success of companies from Apple to Zipcar because of the absence of government regulation. Rep. Steve Scalise (R-LA) questioned the future of startups in an environment without government regulation.
It appears that Upton, Scalise and their colleagues missed the article published earlier in the week by Robin Chase, who founded Zipcar. She wrote a well-received article for Politico on how that company wouldn't exist without an open Internet. None of it mattered to those on an ideological mission to protect the large Internet providers. Other companies have said much the same thing. They similarly ignored the experience of their colleague, Rep. Jared Polis (D-CO), who made his fortune as an Internet entrepreneur, and who earlier in the week opposed the GOP bill during debate on a procedural motion.
And when Rep. Lee Terry (R-NE) said that the FCC had taken control over business plans of big Internet Service Providers, he was partially right. If the business plan's goal was to drive competitors out of business, he was right. Terry, ironically, said it was the open Internet that allowed Netflix to develop.
His statement was ironic because Netflix sent one of the strongest letters ever seen from the corporate sector to the Congress opposing what Terry wanted to do. As senior Commerce Committee Democrat Henry Waxman (D-CA) pointed out, a cable or telephone company could stop Netflix simply for competitive reasons without it being an antitrust violation. Without Net Neutrality, there would be no stopping phone companies from controlling Netflix's access to its customers.
Through it all, the Republicans argued that the FCC wanted to take control of the Internet, much as totalitarian governments wanted to do. That argument is so tiresome. The purpose of Net Neutrality is to make sure no one can take control of what's online -- not the government, not the big businesses that control Internet traffic on a day-to-day basis and have the incentive and opportunity to harm competition.
Yet it was left to Communications Subcommittee Chairman Greg Walden (R-OR) to make the biggest threat of real Internet regulation when he said Democrats didn't want to extend Net Neutrality to "search engines, and others who ride on the network." That was an exercise in "picking winners and losers," Walden said. For the record, Net Neutrality deals with network providers. Search engines are not network providers like phone and cable companies. They are subject to all sorts of other laws, as the Justice Department's conditioned approval of Google's purchase of ITA travel software company showed.
The issue of which companies favored, and which opposed, the rule, is a source of great confusion. AT&T and the cable trade association favored the rule, even though they would benefit from not having it.
That situation caused some tin-hat conspiracy theorizing during the April 5 debate earlier in the week on the procedures under which the House would debate the bill. Recall that AT&T agreed to support the FCC's rules, because the Commission gave away half of the Internet -- the wireless part -- to get AT&T (and cable companies) on board. AT&T testified to Walden's Subcommittee on March 6 that it supported the rule. In the April 5 House debate, Walden and Rep. Cliff Stearns (R-FL) said hidden motives were at play. Walden scoffed at the notion that AT&T was really supporting the Commission, saying that AT&T agreed to go along because the FCC was holding a reclassification threat over their heads. Stearns said that because "a lot of people are fearful of the FCC. That's why they won't say anything" contrary to the FCC rule. Under this scenario, AT&T gets a pass for accepting the FCC rule because it really didn't mean it.
Nonsense. The idea that this FCC could coerce anyone into anything, or even strike fear into corporate hearts, is simply laughable. This Commission doesn't know how and doesn't have the gumption to operate that way. If it did, this issue would have been decided last summer, following up on the U.S. Appeals Court, D.C. Circuit, overturned the FCC's ruling in the Comcast case.
In arguing their case, the Republicans ignored a crucial part of the Internet's history. They frequently quoted a Democratic FCC Chairman, William Kennard, from 1999, in calling for a deregulatory approach to the then-evolving Internet. What the legislators, including Rep. Marsha Blackburn (R-TN), overlooked was that in 1999, access to the online world was provided largely by telephone companies, which were regulated as common carriers.
If a consumer back then had wanted to dial into AOL, Prodigy or CompuServe, the big online services of that era (not today's AOL), no telephone company could have legally redirected the call to their own service. It would have been a violation of the Communications Act.
There were a lot of gaps in the GOP knowledge of the history of regulation. When the House debated the procedures under which the bill would be taken up, they didn't seem to realize that the Communications Act does give the FCC extensive authority, even over services on airplanes. That's not the "camel's nose," as Rep. Rob Woodall (R-GA) said. It's the law and has been for years. The Commission, for example, approved cell service for airlines (along with the Federal Aviation Administration).
No matter. Ideology must be served. Competition, consumers and innovation be damned.
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