Net Neutrality 2010: How Did We Get Here?

It is perhaps fitting that the net neutrality debate, long marked by such intense rancor and partisanship, came to a resolution, of sorts, that pleased virtually no one.

For the past year — 15 months, really — the fight has been raging in Washington and across the Web, with advocacy groups like Free Press and Public Knowledge issuing dire warnings about the end of Internet freedom, while their conservative counterparts and many industry groups insist that regulations are not only unnecessary, but would curtail innovation and investment in network infrastructure.

If those arguments sound familiar, there’s a reason. The rhetorical talking points of the net neutrality debate have held largely unchanged for half a decade. But this year, at its December meeting, the Federal Communications Commission for the first time moved to enact enforceable rules that would prohibit cable and phone companies from discriminating against specific content on their networks.

So how did we get here?

The winding road to Tuesday’s vote began at the Brookings Institution last September, when FCC Chairman Julius Genachowski delivered a speech promising to initiate a rulemaking proceeding to preserve the open Internet, saying that net neutrality rules should apply to both fixed and wireless providers.

The next month, he did just that, and the five-member FCC voted unanimously to approve the notice of proposed rulemaking. The two Republicans on the panel stressed that while they could support a fact-finding mission (Genachowski vowed the process would be “data driven”), they did not think rules were necessary or wise.

So the process was set in motion, but within the FCC, the primary focus remained work developing a comprehensive plan to achieve affordable, nationwide broadband deployment.

But casting a long shadow over the FCC’s net neutrality work was a pending court case, in which cable giant Comcast was challenging the agency’s 2008 order rebuking it for throttling traffic from peer-to-peer service BitTorrent.

On a cold day in January, both sides presented oral arguments before a panel of judges in the U.S. Court of Appeals for the D.C. Circuit. The judges were clearly skeptical of the FCC’s authority in the matter.

In March, the FCC released its broadband plan, which did not explicitly endorse net neutrality, but instead made voluminous recommendations for expanding broadband service, including a major reallocation of spectrum to power wireless data networks.

Then, three weeks later, the court ruled in the Comcast case. As many had expected, the judges held that the FCC did not possess the statutory authority under the Communications Act to enforce an Internet policy statement it had adopted in 2005, the basis for the Comcast order.

And so began the period of supreme uncertainty.

Apart from the net neutrality issue, FCC officials said that the court’s ruling left them on shaky ground to act on a host of the recommendations in the national broadband plan.

Speculation picked up that the FCC would attempt to reclassify broadband as a so-called Title II telecommunications service, resolving the court’s objection that the ancillary authority under the current Title I designation was insufficient to regulate ISPs. Pro-net-neutrality advocacy groups pressed the issue. The cable and phone companies — and many congressional Republicans — blasted the notion as imposing monopoly-era phone regulations on the dynamic Internet sector.

Then in May, Genachowski outlined what he described as a “third way.” He called for reclassifying broadband as a Title II service, but only with significant forbearance provisions to shield service providers from the more odious regulatory obligations.

The reaction was swift and severe. Though the proposal was ostensibly about the larger matter of the FCC’s ability to make broadband decisions, it was positioned as a net neutrality play, and forces on either side of the debate kicked into high gear, with opponents doing everything they could to make reclassification politically untenable.

As the summer wore on, the various stakeholders began to negotiate, seeking a compromise on an issue sometimes referred to as the third rail of technology policy.

But by August, talks at the FCC broke down. Days later, Google and Verizon — frequent Internet-policy foes — unveiled a compromise framework for net neutrality legislation, enraging Google’s longtime allies in the net neutrality advocacy community.

With that proposal on the table, backed only by Google and Verizon, other industry stakeholders embarked on a series of talks led by the Information Technology and Innovation Council (ITI), which was enough to convince Genachowski to delay action on the matter at the FCC.

But those negotiations proved another dead end. The focus shifted to Congress, where Henry Waxman (D-Calif.), the chairman of the House Energy and Commerce Committee, convened his own talks, which seemed poised to produce bipartisan legislation that would settle the question of the FCC’s broadband position. But, like night follows day, that deal fell apart like all the others when Republican members withdrew support, citing concerns that the bill would grant the FCC excessive power over broadband providers.

For a time it appeared that the debate was back to Title II or nothing. Absent congressional action, and in the shadow of the Comcast ruling and the net neutrality rulemaking still pending, the agency was steeped in uncertainty.

But Genachowski pressed on. After collecting a voluminous record of public comments, talks with industry members began anew, and by December, Genachowski announced his plan to bring a net neutrality order to a vote at the commission’s meeting later that month. Split along party lines, the FCC voted to approve the item on Tuesday.

So the year ends with net neutrality rules on the books. They are watered down to the point that hardline advocates are hopping mad, while congressional Republicans are fairly chomping at the bit to strike them down in the next session.

And then there are the courts. The order is almost certain to face a legal challenge, and since Genachowski backed away from the Title II proposal, the FCC’s legal team came up with a novel justification under the existing statutory framework. The Republican commissioners have predicted that the courts will ultimately throw out the new rules.

So is the net neutrality debate settled? Hardly. But at least Genachowski won a compromise, and managed to alienate just about everyone who cares about the issue in the process.

Kenneth Corbin is an associate editor at, the news service of, the network for technology professionals.

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