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FCC Adds New Delaying Tactic to Deciding Net Neutrality Rules

We’ve been playing a waiting game on net neutrality for months. While the FCC stands mute, Google and Verizon have put together their “joint policy agreement” which they are implementing as we speak, which means content on the wireless Internet is probably being discriminated against now. An industry coalition came to some unnamed agreement this week, which apparently allows more regulation of wireless services and more authority for the FCC, but which probably still doesn’t go nearly as far as simply redefining all broadband as the telecommunications service which it clearly is.

The Wall Street Journal reports that we’re still waiting.

Federal Communications Commission officials said Chairman Julius Genachowski is still considering a proposal to re-regulate broadband access under more-stringent rules designed for phone services, and asked for more comment on rules to ensure equal treatment of Internet traffic.

The officials’ remarks Wednesday came in response to speculation that the agency had abandoned an effort to classify broadband networks as common carriers under Title 2 of the Communications Act, in the face of telecommunications-industry opposition.

A senior FCC official said in an email Wednesday that Mr. Genachowski had “absolutely not” abandoned the approach. “All options remain on the table,” the official added.
The agency also asked for public comment Wednesday on issues that have held up negotiations on whether the government should seek to bar Internet providers from favoring some forms of Web traffic over others. This “net neutrality” issue is a central question affecting the proposal to regulate Internet service under Title 2 rules.

In the absence of information, some analysts assumed that Genachowski had abandoned plans to re-classify under Title II, and you can hardly blame them. The latest maneuver, a public comment phase, seems to be designed to push this question out until after the midterm elections:

American net users are being asked to help decide what ISPs can do to the web traffic flowing over their networks […]

In its latest statement, the FCC said it wanted more information about the Google/Verizon plan and asked for public comment on its ideas to exempt wireless and some other branded services.

The plea for public input was criticised by lobby groups who want the row over net rules resolved.

“While the FCC continues to play the game of kick the can down the road, consumers are left unprotected,” said Derek Turner, director of lobby group Free Press.

We don’t really need another public comment phase, although advocates should be encouraged to assail the FCC with demands for real regulation of the broadband Internet. The agency has all the authority it needs, and all the information it needs, to make the changes right now. It’s curious that the FCC thinks they have to put the Google/Verizon plan, which doesn’t meet the stated net neutrality principles of the Administration in any way, up for public comment. It would allow discrimination of content on the wireless Internet and also through “managed services,” which essentially would provide premium content at a price. That’s simply the opposite of the FCC’s own goals.

The WSJ reports that lobbyists have privately restarted efforts to foster a compromise with Genachowski, after a separate round of secret talks were called off. And this public comment phase delays a final decision, giving more time for those lobbyist talks to pay off. It’s not necessary.

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David Dayen

David Dayen