THE BLOG
10/06/2011 02:12 pm ET Updated Dec 06, 2011

Senators' Choice: Their Constituents Future or Big Telecom. Hmmm...

In a few weeks, quite a few members of the United States Senate will have a choice. They either:

a) make sure that their constituents, particularly those in rural areas, will have a chance to participate in a 21st century economic and educational system or

b) follow rigid ideological doctrine that pays no heed to the welfare of the residents of their states.

(Yes, it is a trick question.)

Perhaps in a rational world, the welfare of constituents would have at least a fighting chance to intrude on the psyche of these legislators. Every elected representative should want the best technology available for his or her constituents. But as we all know, that's not at all likely.

For senators who represent states like, oh, Texas, Kentucky, Nevada, Tennessee, New Hampshire, Wyoming, Missouri, Arkansas, North Carolina, Maine, Iowa, Alabama and a few others, this should be an easy one. These are states with large rural constituencies which could benefit from widespread high-speed Internet access (broadband) deployment.

On the other hand, those are just some of the states of the sponsors of a Senate resolution (S.J. Res 6) that would nullify the relatively feeble rules the FCC approved on Dec. 21, 2010 which allow for a more or less open Internet for wired connections, but a decidedly less open Internet for wireless. This is a two-step dance, starting with the Republican effort to kill the Open Internet rules and leading directly to universal service support for broadband.

Even Sen. Olympia Snowe (R-Maine), who previously championed open Internet legislation and who would like to be the top Republican on the Senate Commerce Committee, is a cosponsor of the resolution. After all, her state just elected a Tea Party governor, and she has a Tea Party challenger in the Republican primary. Upholding the government on anything could be her political death, much less succumb to the notion of allowing the FCC to... Regulate The Internet!! Or worse!!!

The House passed an identical resolution on April 8. It's safe to assume that the rhetoric from the House debate will be replicated or, if possible, surpassed, by the grand orators of the Senate.

The arguments in the House were full of flaming expressions, all based on the inaccurate premise that the FCC had exceeded its authority. In the words of Rep. Greg Walden (R-Ore.), the chairman of the House Communications Subcommittee, the FCC was trying to "regulate the Internet."

In the more overblown expression from House Commerce Committee Chairman Fred Upton (R-Mich.), formerly a reasonable person: "Once again, we're here to put the brakes on runaway bureaucracy. The FCC has overstepped its authority and is attempting to seize control of one of the Nation's greatest technological success stories."

Regulate the Internet? Seize control? That's all nonsense, but nonsense to which our elected representatives, through the influence of the Tea Party and the big telecom companies, are willing to accede, even legislators like Snowe who should know better.

Without getting too technical or legal about it, the FCC in its own half-baked way is trying to re-establish the fairness that had been part of telecommunications law since the Communications Act of 1934. Because of the law, phone companies couldn't route your call to Pizza Hut to Domino's because AT&T had a deal with Domino's. But the FCC in 2005 played a little regulatory shell game and changed the rules, leaving broadband out of the fairness protections. A Federal court ruled in April last year that a Commission attempt to enforce fairness through this specific jerry-rigged construct wasn't legal.

When the FCC issued its Open Internet rules, the hue and cry went up across the land that the FCC was trying to "regulate," or "take control", of the Internet when it tried to bring back fundamental fairness. Granted, the FCC's Open Internet rules had another shaky legal construct. The shrill voices of unreason disregard the basic observation that broadband is a telecommunications service, just like telephone service over which the FCC has jurisdiction. Broadband is not Amazon or Hulu or YouTube.

The FCC tried to dance around the question of what authority it has over broadband. It may end up with none at all, which at first glance would seem to please those rabid FCC haters in Congress. That would be fine except for one thing -- the second step of the dance -- universal service. For decades, there has been a system overseen by the FCC called "universal service" in which money is sloshed around so that telephone rates in high-cost areas can be subsidized some by customers in other areas.

Many of the anti-FCC Congressional crowd represent rural areas, where broadband coverage can be sparse and expensive, which benefit from the universal service subsidies. That's all well and good as long as the subsidies stick to normal telephone service. But when the network transitions to broadband, then the game changes drastically.

FCC Chairman Julius Genachowski said the agency later this month will come out with a long-awaited reform of the universal-service system to cover broadband, based in part on a plan put forward by the telephone industry. Even the industry recognizes how messy the situation is. Their plan was 13 pages. Their tap-dancing justification for the FCC authority to deal with broadband for universal service purposes was 68 pages, and is as convoluted as the FCC's justifications were in the Open Internet rules. The new FCC program likely will end up in court, and the FCC's authority will be questioned just as it is being questioned in the Open Internet issue. The Congressional vote will no doubt be part of the argument against the Commission.

For the FCC haters in Congress -- are you willing to risk the economic and social development of your constituents by killing off the FCC authority over broadband? Do you really think you can kill the Open Internet rules without killing universal service support? That will be one fine line to draw -- the FCC has authority over broadband to support service for your constituents but not to protect the fairness of broadband for everyone online. Good luck with that.

The Tea Party and Big Telecom will be glad you voted down the FCC Open Internet rules. Your constituents who will be left out of the broadband evolution will have a different view.