Waxman, Congress Strike Out (for now)

by Mike Wendy on October 1, 2010

As you may know, the so-called “Waxman compromise” failed to move forward the other day. 

In Chairman Waxman’s own words, his proposal would –   

…Be an interim measure to protect net neutrality while Congress considers a permanent solution.  It contained four key consumer protections that would:

  • Restore the FCC’s authority to prevent blocking of Internet content, applications, and services, which was struck down by the court in the Comcast decision;
  • Prevent phone and cable companies from unjustly or unreasonably discriminating against any lawful Internet traffic;
  • Prohibit wireless broadband providers from blocking websites, as well as applications that compete with voice or video conferencing, while preserving the FCC’s authority to adopt additional safeguards under its existing authorities; and
  • Direct the FCC to issue transparency regulations so consumers know the price, performance, and network management practices of their broadband providers.

It would also “provide the phone and cable companies with protection from the threat of reclassification for two years.” 

Why did it fail?  Well, according to the Chairman, it couldn’t go forward because full bi-partisan support went lacking.  An argument could be made (and I have made it), that to mount any credible threat to the FCC with this congressional tactic, Republicans had to be on-board.  And they weren’t.

Oh, well.     

The most important part of Waxman’s statement is here:

I do not close the door on moving legislation this Congress.  Cooler heads may prevail after the elections.  But I want my position to be clear:  my goal is the best outcome for consumers.  If our efforts to find bipartisan consensus fail, the FCC should move forward under Title II.  The bottom line is that we must protect the open Internet.  If Congress can’t act, the FCC must.  (emphasis added)

Letting no crisis go to waste, the Free Press believes it’s now open season (again) for the FCC to get cracking and heavily regulate the network providers like old fashioned telephone companies:

In the wake of Chairman Waxman’s announcement, consumers need FCC action now more than ever. The FCC must exercise its authority to protect Internet users and implement the National Broadband Plan. Consumers are currently unprotected, and it would be irresponsible for the FCC to fail to act…

Apparently, the Internet is broken.  But then, they’ve been saying this for the past five years, during the medium’s most explosive growth ever.

Anyway, the key take-away from this whole exercise is this.  The Waxman bill – its main statement – still holds.  Both sides of the aisle are concerned about the FCC and its expansive regulatory desires.  While politics presented an imperfect option here, as well as a not-so unexpected result from the Republicans (given current midterm polling), the FCC has to know that Congress will not tolerate its overreach.  Especially its Third Way / Title II foray. 

At the same time – if Congress can’t act, guess who’ll step into the vacuum?

I do not believe that Net Neutrality regulations – as proposed within the Waxman compromise or elsewhere – are warranted.  The marketplace already does this, protecting the openness of the Internet.  My main concern, however, is with the FCC’s Third Way / Title II reclassification efforts.  If these are not stopped, it spells the end of robust, core infrastrucutre growth because it will allow the FCC to “plain-old-telephone” the Internet into the “plain-old-Internet.” 

No one wins there. 

FCC Chairman Julius Genachowski assures us that he’ll use his new powers only sparingly.   But what’s to stop other FCC’s, or changed circumstances, from changing that?  Nothing.

The FCC’s Third Way / Title II game is a hidden tyranny.  It lulls all into the false belief that it will proceed without harm.  Yet, as both the Waxman and Free Press statements allude to, it is based on the very real potential for action (i.e., the FCC must act).  After all, why have such powers if they’re useless / meaningless?

The problem is – they will be used.  And in ways (mostly restrictive) that we can’t even imagine.

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