Back in 2002, the Bush administration gave the phone and cable companies what they wanted and classified broadband outside the normal regulatory framework for two-way communications networks like phones. Fast forward to 2009, when the FCC came down on Comcast for blocking legal traffic on their networks. An appeals court overturned the lawsuit, basically saying the FCC has no legal standing to regulate the Internet. Which, on its face, is crazy.

However, that’s the current situation. It can be fixed. All the FCC needs to do to be able to regulate the Internet again is simply reverse Bush’s mistake. And indeed, an earlier Supreme Court ruling on Bush’s original move confirms this – as a policy expert I spoke to put it, the Court essentially said the FCC is allowed to reclassify services.

To reclassify, the FCC needs to hold a vote of its five member board. And the votes are there – Obama appointee Chairman Genachowski has been a strong supporter of net neutrality and its assumed the other two Democratic chairman would vote with him.

So, will the Chairman and FCC do it? So far, we don’t know.

Yesterday, Genachowski appeared before the Senate Commerce Committee and faced questions on whether the FCC would indeed take the action needed to do its job. He ducked the questions for now. However, a broad group of Senators stood up for the idea and told Genachowski, in effect, "Do your job."

Senator Dorgan said, "I love the free market, but it needs a referee." Adding:

"Of course Congress has the opportunity to address this but before now and the end of the year, I don’t think Congress is likely to do it. So I think we have to look at the FCC to do it because the FCC unraveled it in the first place."

Senator Kerry published an op-ed saying:

Look, eventually we may need to build a new legal framework for broadband service, but the Internet is moving too fast, the economy needs the innovation of the Internet too badly, to wait. Especially because we don’t have to. The FCC can act right now.

And Senator Rockefeller was especially pointed, saying the FCC should bring "all of its existing authority" to bear on the issue:

Action is what needs to happen. While Chairman Genachowski and the FCC can simply act, they won’t if they face withering criticism from Congress. It’s crucial that members of Congress stand up and express support for the FCC to do its job and regulate the most important two-way communications technology of our era.

Without reclassification, Internet Service Providers like your cable or phone company will be free to slow down websites that don’t pay them a "premium delivery fee" – something that will make them billions of dollars. And they’ll be free to block content they don’t agree with. But on a more basic level, without reclassification, the FCC won’t be able to perform its Congressionally mandated mission.

The backlash from these big corporations, as you can imagine, will be intense. They’ll be deploying their army of lobbyists to pressure the FCC in closed-door meetings, get corporate Members of Congress to sign business-friendly letters, and contribute to the campaigns of politicians to win their support. As one insider working for reclassification put it today, the lobbying and pressure from telecom companies against reclassification "will be like the fight over net neutrality times ten."

The telecoms will portray reclassification as open war. It’s not. It’s simply allowing the FCC to do its job. Senators and Representatives need to stand up and support Chairman Julius Genachowski. And Genachowski himself needs to stand up and lead.

Click here to contact your Members of Congress and tell them to stand strong for net neutrality. And add in a short message telling them to support the FCC in reclassifying broadband.

Jason Rosenbaum

Jason Rosenbaum

Writer, musician, activist. Currently consulting for Bill Halter for U.S. Senate and a fellow at the New Organizing Institute.

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