By Rob Pegoraro
Washington Post Staff Writer
Sunday, April 18, 2010; G03
If your Internet provider jerks you around and slows you down, what are you going to do about it?
Fourteen years ago, the answer was easy: Fire the company and switch to one of dozens of other firms selling dial-up access. Seven years ago, you could choose from a healthy variety of digital-subscriber-line services, thanks in part to "line sharing" rules that forced incumbent carriers to open their infrastructure to competitors.
But over the past few years, your options have shriveled to just one or two companies selling the fastest access.
And two weeks ago, the Federal Communications Commission lost most of its authority to police abuses by Internet providers.
The combination of those two factors explains why the U.S. Court of Appeals for the D.C. Circuit's April 6 ruling undercutting the FCC's ability to write "net neutrality" regulations has people upset: If we had vigorous competition among broadband providers, we might not need the Feds to referee the market.
Let's look at the competition issue first. The FCC's research shows that 78 percent of American households have access to only two land-based broadband providers and that 13 percent have one.
Don't expect that to improve. Many competing DSL services have left the market, spurred by the end of line-sharing in 2005 and other corporate consolidations. A few months ago, for instance, AT&T elected to close its WorldNet DSL service.
Meanwhile, technologies that were once promoted as alternatives to phone and cable-based services have flopped. City-wide WiFi access, hyped by yours truly and others, turned out to be a business bust. The power-line broadband that then-FCC Chairman Michael Powell lauded as having "great promise" in 2004 fared no better: Last week, Manassas voted to unplug its pioneering service.
Yet another bright broadband hope dimmed last month. Verizon began notifying cities and counties that had been negotiating franchise agreements for its FiOS TV service -- including Alexandria and Baltimore-- that it was done expanding its fiber-optic network to new markets. Spokesman Harry Mitchell wrote that the company had met "our long-stated goal of passing 18 million households" and would turn to filling gaps in its franchise areas.
The FCC's recently announced National Broadband Plan offers little hope of greater competition -- which might explain the desperation you see among cities hoping to be chosen for Google's experiment in deploying 1 gigabit-a-second fiber access to homes.
That brings us to the appeals court's ruling that the FCC could not write net-neutrality regulations without prior congressional authorization (which also threatens the FCC's plans to subsidize rural broadband service). The judgment makes legal sense but leaves Internet providers free to engage in such abuses as slowing customers' access to legal sites and services -- something Comcast was caught doing in 2007.
That is a problem, contrary to what you might hear. Net neutrality isn't a concern just for freeloaders using BitTorrent file-sharing -- a service with legitimate uses -- and it's not a government plot to control the Internet. It's about ensuring that the one or two Internet providers in town can't limit what you do on the Internet.
So if the court ruling has sent the refs off the field, and if the closing of the American broadband market isn't about to be reversed, now what?
At one extreme, we could do nothing. The FCC could publicly scold Internet providers; hopefully, the pain of bad publicity would force them to correct their conduct. Presumably, we can use this tactic on Wall Street next.
Some firms would rather see the Federal Trade Commission take over policing Internet providers, enforcing its rules against false advertising and abuse of market power. But when companies get to shop for a regulator, they have the funny habit of picking the most lenient one.
A third option would be for Congress to pass a law giving the FCC specific net-neutrality authority. You'd just need Congress to pass one bill . . . despite deep partisan divides . . . in an election year.
The hand grenade on the conference table is "Title II reclassification." Here, the FCC could -- without a permission slip from Congress -- decide it erred in 2005 when it classified Internet providers as "information services" to end line sharing.
It would then put them under Title II of the Communications Act of 1934, the "common carriers" section requiring nondiscriminatory conduct by phone services, and exempt them from its voice-specific provisions.
But this might not be as straightforward as advocates like the digital-liberties groups Public Knowledge and Free Press suggest. Large, well-connected telecom firms would howl in protest -- not least because a Title II reclassification could allow a renewal of line-sharing rules -- and would probably challenge the move in court.
All these factors don't help a quick resolution. We have a situation full of lawyerly jargon, with risks that can't be dramatized by putting a sick kid on a stage. I hope you like your Internet provider, because you may be stuck with it for a while.
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