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Are Julius Genachowski and the FCC running out the clock to avoid protecting the Internet?

It’s well known that the FCC is having so-called "stakeholder meetings" with the big phone and cable companies and a few big tech companies about their proposed "third way" to reclassify broadband Internet and codify net neutrality rules, which would allow the FCC to protect the Internet for consumers. These meetings, coming in the wake of the court case that essentially took away the FCC’s authority to protect the Internet and implement the National Broadband Plan, have included all the big phone and cable giants – AT&T, Verizon, Comcast and the like – but have excluded consumer groups who have been advocating for the public’s protection against these corporate behemoths for years.

Seeing as how the FCC’s proposals so far have been seen by some astute observers as full of corporate-friendly loopholes, most fear these meetings are the prelude to the collapse. The FCC will meet with the big corporations, they’ll come to an agreement behind closed doors, and eventually, the FCC will put forward net neutrality and other regulations that are either so full of loopholes as to be nonfunctional or absent altogether. If consumer groups and tech companies in favor of net neutrality balk, so what? They get the blame. In other words, many people, including myself, think these meetings will result in an FCC deal to sell out the Internet to big companies, despite denials from an FCC low on credibility.

But what if these meetings are something different?

I spoke with a telecommunications lobbyist who said that a lot of people familiar with the FCC have a different theory, one more cynical or politically brilliant, depending on your view.

What if Julius Genachowski, chairman of the FCC, is simply running out the clock?

The idea works like this: The FCC (and members of Congress) have endless rounds of these stakeholder meetings. They make a big show of "listening" to everyone who comes their way. And then, before you know it, we’re in election season.

When Democrats lose a few seats in the House and Senate in November as they inevitably will, Genachowski and the FCC can then say the people have spoken against holding these big corporations accountable and protecting the greatest communications and information medium our world has ever known. And they can even point to the astroturfing teabag organizations like Americans for Prosperity or media "personalities" like Glenn Beck as some kind of proof.

There is no deadline right now, legally or politically, for an FCC that may not want to take on big companies but wants to fool the nation into thinking it’s trying. There is no endgame. The Chairman could simply have meetings until November with "stakeholders," pretending the big phone and cable companies will suddenly see the light and agree to net neutrality. And then in November, having predictably failed to come to an agreement, he can throw up his hands.

Perhaps these meetings aren’t the beginning of a sellout but instead the running of the clock in defense of the status quo. In the end, there’s not much of a difference. The FCC can’t enforce net neutrality now, so the status quo is the same as failing to deliver new regulations. Without coming out and saying it, Obama, Genachowski and the FCC could screw consumers and betray a campaign promise just by wasting time.

I decided to do a little research and what I found was troubling.

In 2002, the Bush-era FCC decided, as part of its push to deregulate vast portions of burgeoning Internet services, to classify Internet services provided by cable companies as "information services" instead of "telecommunications services." The move stripped the FCC of authority to protect consumers of cable Internet services from big corporate greed. The move also favored big cable Internet providers like Comcast and Time Warner Cable over smaller startups. These startups, like Brand X and Earthlink, sued in federal court against these rules, arguing that Internet access through cable systems is both an information service and a telecommunications service.

In 2005, the Supreme Court ruled that the FCC could indeed deregulate cable Internet service by reclassification, a victory for the big cable companies who sold the service and for the anti-consumer Bush-era FCC. After that Supreme Court case was handed down, the FCC realized they had their green light to deregulate DSL services as well. They wasted no time putting into place their new regulatory scheme. Less than six weeks later, the FCC issued and adopted new regulations giving control of DSL service to the big phone companies.

The situation above in many ways closely mirrors the situation we face today – except the Bush-era FCC acted with alacrity whereas the Obama-era FCC is sitting around chewing the fact with executives in stakeholder meetings instead of committing to protecting consumers as promised.

On April 6th, 2010, in response to the Obama-era FCC enforcing net neutrality regulations on Comcast, the Supreme Court ruled that the FCC couldn’t protect online consumers and net neutrality because broadband Internet access was previously classified by the Bush-era FCC as an "information service," stripping the FCC of its authority. However, previous Supreme Court precedent, according to most legal observers, likely allows the FCC to "reclassify" broadband as a telecommunications service, giving the FCC back the authority to protect consumers that the Bush administration gave away.

The path forward for the FCC after the Comcast case was clear – reclassify broadband. Just as the Brand X decision signaled that the FCC could deregulate to fulfill the Bush agenda, the Comcast decision signaled that the FCC had to reclassify to enforce network neutrality and fulfill the promised Obama agenda.

So what happened? The Obama FCC, led by Julius Genachowski, did not act in six weeks. It took four weeks to release a "third way" plan to protect the Internet – a plan for which they deserve some praise. Since that initial blog post and press release they have offered a legal notice of inquiry (issued 10 weeks after the Comcast decision), which didn’t even explicitly favor that plan they had put forward weeks earlier over any other plan on the table – including the plan of doing nothing and failing to protect consumers.

And since that release, they have pretty much moved as slowly as possible towards actually turning that plan into policy. Indeed, Free Press and other consumer groups have been frustrated by the FCC’s lack of specifics or real movement, grading the Chairman’s first year with "incompletes" across the board.

Bottom line: As of today, it’s been 14 weeks and the FCC is having stakeholder meetings with the companies committed to destroying net neutrality and taking over the Internet instead of voting on actual policy. No rule for protecting consumers is in sight.

There’s no endgame right now. But we can change that.

Julius Genachowski and Barack Obama, you’re officially on notice. Your "third way" plan for reclassifying broadband Internet service and protecting consumers was sound in its foundation. (Though if you want to improve it, your fellow commissioner Copps has a few great ideas [pdf].) You’ve had more than double the time your predecessors had to make a similar decision. It’s time for action.

The FCC must adopt new rules by September enabling our government to smartly and efficiently protect the speech rights and online choices of people like you and me from the big cable and phone companies like Verizon and Comcast. Further delay amounts to nothing more than an endorsement of the status quo – the George W. Bush framework – and takes away the Internet from the public and gives it over to these greedy corporations.

Mr. Chairman, no more stalling. It’s time to get this done. However pleasant the chats in your stakeholder meetings may be, you’ve got until September to reclassify, adopt net neutrality rules, and protect the Internet. If you blow the deadline by running out the clock and keeping the status quo that favors big companies over the people, we’ll know which side you’re on.

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Jason Rosenbaum

Jason Rosenbaum

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