It's put-up or shut-up time for the FCC's net-neutrality advocates

By Rob Pegoraro
Washington Post Staff Writer
Saturday, October 2, 2010; 5:59 PM

Congress seems to have ended its involvement in the long-running network-neutrality debate by declaring its own neutrality in the matter.

As my colleague Cecilia Kang reported Wednesday, House Energy and Commerce Committee Chairman Henry Waxman (D-Calif.) gave up on his efforts to pass a net-neutrality bill after failing to get any Republican backing for a compromise he had been crafting.

That should not have surprised anybody. The chances of any bipartisan bills passing have plummeted as we near an election that will probably leave the GOP in a stronger negotiating position- after which those chances should drop to approximately zero.

But the need to make a decision on net neutrality hasn't disappeared just because our legislative body now finds it too difficult to legislate.

The issue here is simple: Should the government prevent Internet providers from discriminating for or against legitimate sites, services and applications?

That's not a theoretical risk. Telecommunications firms and some networking experts have argued for the right to charge other sites more for faster delivery of their data or put the brakes on some online uses that they feel clog their networks.

Letting providers charge some sites for access to the passing lane or push the data of others off to the slow lane is not how the Internet was designed to operate, or how Internet service has traditionally been provided.

Having to pay extra for preferred or assured access to an Internet provider's customers might not make much of a difference to Web companies that already dominate their markets, but it would greatly complicate the task of start-ups.

Customers, in turn, would have minimal recourse, thanks to the lack of competition in many local broadband markets.

Fortunately, few companies have even tried tampering with their users' connections in these ways. And those that have, such as

Even telecom firms that oppose net-neutrality regulation say they would continue to treat legitimate sites and services equally anyway. (One reason: They could still charge individual customers more for using excess bandwidth or otherwise imposing a disproportionate hit on their networks.)

Some, such as Verizon Wireless and AT&T, have already committed to neutrality obligations imposed in wireless-spectrum sales or merger approvals.

Usually, when everybody professes agreement with a set of principles that only a few people violate, it's not hard to write and pass enforceable laws.

For whatever reason, that hasn't happened this time around.

Congress's inaction returns the net-neutrality debate to where it was back in May - and also to a possible solution.

Back in the spring, Federal Communications Commission Chairman Julius Genachowski suggested that the FCC could write net-neutrality rules on its own by reversing its 2005 decision that had placed broadband providers under a looser regulatory framework than dial-up services.

This "Title II reclassification" (named after the chapter of the Telecommunications Act of 1934 regulating "common carrier" services such as voice calling) doesn't require a permission slip from Congress. A simple majority vote of the FCC's five commissioners will do, and three of them have publicly argued for net-neutrality rules.

And not only is this Title II fix the only way left to have any effective net-neutrality rules, it's also a requirement for some important plans to expand rural Internet access in the FCC's National Broadband Plan.

Further, it's hard to claim that the FCC lacks a mandate to do this: President Obama included net neutrality in his tech-policy campaign pledges early on.

But will the commission, having spent the entire summer avoiding action on net neutrality, now go ahead and do what it's been saying it will do? Or will it punt on the entire issue? I don't see any other option left for the FCC.

Corporate executives have been fond of complaining about the "uncertainty" out of Washington. Well, the net-neutrality debate is one source of uncertainty the government can easily fix. The FCC can get it over with, follow the plan it unveiled in the spring and write a simple set of net-neutrality rules.

If the commission can't or won't do that now that every other remedy appears exhausted, it should admit the obvious, end this farce and stop wasting everybody's time.

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