12/01/2010 11:35 am ET | Updated May 25, 2011

The FCC's Long December

On the stage of the November Web 2.0 Summit, Federal Communications Commission Chairman Julius Genachowski rattled through the ways in which his commission was stymied from taking any action regarding Network Neutrality, society's battle over the Internet public commons. The inaction of the Commission has left industry interests and consumer advocacy groups alike disillusioned with the Commission's ability to manage the issue whatsoever.

The FCC faces its long December, its time when it will need to make its hard decisions regarding Network Neutrality. Monday's Level 3 Communications press release, revealing its tussle with Comcast over Comcast's "toll road," levying new fees for companies like Level 3 Communications, who provides the online streaming services for Netflix, may have just been playing into the calls for the "free and open Internet," but will serve to frame the debate that is sure to take place amongst the commissioners at the FCC this month.

Level 3 Communications' current issues highlight the fear of content and traffic discrimination behaviors that have been present over the last seven years, described by the term "network neutrality," coined by Columbia Professor Tim Wu. In addition to concerns over "toll" levying behavior, the big question at the December 21 meeting will be how the Commission addresses the treatment by providers of wireless versus wired broadband services.

The DC Circuit Court decision in March did not just strip the FCC of its current regulatory authority with an issue like Net Neutrality; it highlighted who the net neutrality debate is currently playing out between, pitting the old monopolists of the telecommunications industry against Internet companies who many fear are just the new ones. This debate is just a small part of a larger cultural war being fought over the regulation of the Internet and technology.
Where the FCC will pull its regulatory authority from after the DC Circuit decision is less unclear: it will likely have to reclassify its authority under the same category under which it regulates telephone service.

The FCC's long December will either restore confidence in the Commission's ability to tackle difficult issues like Net Neutrality or leave us in a similar position where many feel the FCC has disclaimed responsibility and rendered its own obsolescence with complicated Internet issues. The question regarding the Commission's protection of Internet users won't be "What could they have done?," but will become "What do they do?"