[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/Rockefeller Urges Genachowski to Regain Broadband Authority 4-14-10.flv[/flv]

At the Senate Commerce hearing on April 14, Sen. John Rockefeller (D-WV) told FCC Chairman Julius Genachowski that the agencies authority to protect an open Internet and connect more people to broadband is at risk because of the Comcast case.  Rockefeller pledged to support the chairman in reestablishing the agency’s authority to stop the Internet from falling under the control of companies like AT&T, Comcast and Verizon.  (3 minutes)

Phillip "Don't over-complicate this" Dampier

Promises made during election campaigns that are later dropped for political expediency are broken promises.

Those are wise words for both the Obama Administration and the FCC as they ponder what to do about broadband regulation.  President Obama campaigned on developing an effective National Broadband Plan and preserving the integrity of the Internet with Net Neutrality policies.  Both will now be tested in how they respond to a recent court decision which has thrown a wrench into broadband policy initiatives.  At issue:

• How Americans access the Internet;
• What kind of Internet they find once they access it;
• How much money is it going to cost at the end of the month for what kind of service.

These are all laid on the table of FCC Chairman Julius Genachowski with a big bow attached, courtesy of Comcast.  The nation’s largest cable company threw a hissyfit when the FCC rebuked them for throttling the speeds of their Internet customers.  They sued and won more than they bargained for when the DC District Court ruled the Commission lacked the authority to regulate broadband as an “information service,” a dubious premise cooked up by former FCC chairman Michael Powell.  The concept was akin to a police officer placing you under arrest on the authority of a bottle of green tea.  Of course you could get away with that too as long as nobody challenged it in court.

Chairman Genachowski could choose to kick the ball down the field to be played another day by appealing the court decision or trying to get Congress to pass new legislation.  Or he can strike decisively and effectively by declaring broadband to be what it actually is — a “telecommunications service.”  Under that declaration, the FCC can implement its National Broadband Plan, which will dramatically improve access for rural America and promote better broadband service for those who already have it.  The Commission can also move forward on common sense Net Neutrality policies that tell providers not to interfere with online traffic for monetary reasons.  It can even give the Commission the authority to keep a watchful eye for the next clever scheme that benefits providers at the customer’s expense.

But that depends on Chairman Genachowski standing up to the broadband industry, their friends in Congress, and the inevitable industry-funded BS Festival from astroturfers designed to sucker people into supporting industry positions.

The threats and concern trolling are already parading across the Beltway:

• “The industry would declare war on the FCC“: That war has been underway ever since the litigious broadband industry first started running to friendly courts whenever it encountered a regulatory nuisance just waiting to be overturned on “free speech for corporations”-grounds.  Chairman Genachowski needs to borrow from President George W. Bush and declare, “bring ’em on!” He can fight industry propaganda about “lost jobs” and “investment” with facts found in every provider’s quarterly financial reports showing bountiful harvests of profits, while spending and costs decline.  It’s not the FCC’s fault Verizon fired more than 13,000 employees in the past few years.  The FCC didn’t tell Verizon to stop upgrading its copper wire network to fiber optics to remake traditional landline phone service into something far better and eventually even more profitable.
• “Congress would be upset by an overreaching Obama Administration”: That would mostly be the same Republican members who reflexively oppose every aspect of the Obama Administration’s legislative agenda.  Considering warmed-over health care reform is still being called “socialist” and an “apocalypse” by these people, there isn’t a Pick-Me-Up Bouquet in the world that could get them to support this administration.  Ordering a ham sandwich and leaving the Swiss cheese off would probably result in some members of Congress reciting Glenn Beck’s declaration the omission is proof Obama is working with lactose-intolerant high officials of the Chinese Communist regime.
• “Verizon, AT&T, and others will step up spending on Astroturf Campaigns”: If a consumer like myself can sniff out an industry-funded campaign to convince consumers to support policies directly challenging their own wallets, why can’t Washington policymakers?  The industry talking points rarely change anyway, and those shouting the loudest usually try to obscure who paid for the megaphone.  When in doubt, simply ask “is there any industry money funding your organization?”  If they won’t say, you have your answer.
• “But they’ll sue”: When are they not suing?  Of course the industry will challenge the legality of any policy that puts their quest for unlimited profits at a disadvantage.  We live in a system of checks and balances between private enterprise and public oversight and regulation.  The struggle for the perfect balance between the two will persist forever, but after an era of reckless deregulation and abdicated oversight responsibility, the resulting Great Recession should provide strong evidence the pendulum needs to swing in the opposite direction.

FCC Chairman Julius Genachowski

USA Today today published a piece on Genachowski’s coming decision which hit all the aforementioned bases.

Astroturf Campaigns and Legal Threats: “If the FCC changes the way it treats high-speed Internet, then “everybody in the industry would sue,” says Scott Cleland, chairman of NetCompetition.org, an Internet forum supported by cable and phone companies. “It would be like an 8.0 earthquake under the sector,” he adds. “Hundreds of billions of dollars have been invested (in broadband) in the belief that there’d be a market rate of return, not a regulated rate.”

Cleland is a notorious industry mouthpiece, but at least he openly acknowledges his strings are pulled by the industry that generously funds his anti-consumer, pro-provider rhetoric.

Republicans: The FCC’s two Republican commissioners have said they’d fight a move to reclassify broadband.

No surprises there, and you can expect most Republicans in Congress to also take the industry’s position on these matters.  Guess what?  They still won’t vote for you even if you compromise with the broadband industry.

USA Today, itself headquartered in suburban Washington, delivers up the beltway solution always pressed on pliable Democrats – compromise away your principles and split the difference:

If Genachowski wants to defuse the issue, he could try to engineer a compromise. For example, he could agree to take broadband reclassification off the table as long as providers make legally binding promises to offer consumer protections called for in the National Broadband Plan and to agree to treat all Web services equally. But it will be hard to please everybody as advocates gear up for a fight.

That’s the understatement of the year.   It’s also a classic case of reinventing the wheel.  What USA Today‘s reporter suggests is exactly what the FCC used prior to the Comcast case to regulate broadband — an “understanding” with the industry without clear-cut regulatory authority.  That lasted until the three judge panel laughed it out of court.  The FCC has no authority in its current form to make legally binding promises with an industry that contemptuously dismisses the notion it should have any in the first place.  Without reclassification, the judge certain to hear the next court case challenging the “understanding” will almost certainly throw that out as well.

Declaring regulatory authority does not, as the industry likes to pretend, mean that your Internet Service Provider will be saddled with 1930s telephone rules.  It merely gives the FCC the authority to move forward on its agenda to improve broadband, protect its integrity, and help coordinate a plan for the future that first takes your interests to heart, not simply those on Wall Street.

For a change of pace, let’s choose the clearly marked road of reclassification and avoid the deregulatory dead end of broken promises offered by the broadband industry or the equally awful decision to build a new road in a futile effort to win bipartisan brownie points.

[Article Correction 4/15/2010: The original piece laid blame for the classification of broadband as an “information service” on former FCC Chairman Kevin Martin.  In fact, the classification was made by former FCC Chairman Michael Powell, who served during the first term of the Bush Administration.  We regret the error.]

Phillip "The only New Deal my cable company brought to the table was a $150 monthly broadband bill for exactly the same level of service I had when paying $50" Dampier

Joe, a regular Stop the Cap! reader noticed the National Review this morning published another one of their “in the pocket of big telecom” editorials proclaiming Net Neutrality is “anti-consumer.”  Right into the first paragraph, it was clear the editors either fundamentally misunderstand the reality of today’s broadband industry or honestly didn’t care as long as it suited their business-friendly agenda.

Readers, you need not go along with the charade.  While the publishers of National Review can probably afford to buy their way around anything the phone and cable industry can dream up, you probably cannot.  What those opposed to Net Neutrality frame as “freedom from government intrusion” is in reality an attempt to keep your broadband provider from screwing around with your connection in hopes of charging you more for the same service you used to have.

Turn on your TV these days and within minutes you are likely to see several commercials from your local cable, satellite, or telecommunications company trying to convince you that their cable, DSL, or mobile broadband services are superior to those of their competitors. That’s because the market for broadband service is robustly competitive: If service providers didn’t advertise, they would lose business.

Actually, most of the advertising I see on my television comes from free ad inserts Time Warner Cable hands themselves during ad breaks on national cable channels.  My local phone company, Frontier Communications, hasn’t advertised on television for quite awhile.  The mobile broadband advertising I see fights over coverage and who has the coolest new device.  They aren’t advertising on price because they almost all charge exactly the same $60 for 5 GB of usage per month.

None of this represents “robust competition” when one of the players on the wired side is absent from the airwaves and the wireless folks have convenient cartel-like pricing for wireless broadband.

They would also lose business if they did something that made their customers unhappy, such as slowing or blocking the delivery of popular content over the Internet. Or they might gain customers if they created a model that, for a fee, guaranteed uninterrupted high-speed access to certain services, such as telemedicine, video conferencing, or some other use of the Internet we have yet to imagine. This competition directs broadband toward its most efficient uses. It is pro-consumer in that it allows for the proliferation of choices and pressures companies to offer a variety of pricing options.

Of course, the editors who wrote this did not have to fight back a 300 percent rate increase with an Internet Overcharging scheme that would have limited broadband access in at least five cities to start.  Let’s test their theory by asking a few questions.  First, did anyone ask for this kind of pricing to begin with?  Answer: No.  Second, did the plan make customers unhappy?  Answer: Emphatically yes.  Third, upon hearing from customers that they did not want this kind of pricing, did they discard the plan?  Answer: Not on your life.  Fourth, did it take two members of Congress to drive the company to finally pull back their plan?  Answer: You bet.

Now ask the same types of questions about slowing down your web connection to make room for the neighbor up the street willing to pay more to get more while you enjoy less for the same price you’ve always paid.

Lesson learned: when you effectively have a duopoly or monopoly in your market, you don’t have to listen to customers — they have to listen to you.  Indeed, even where competition exists, there is every indication the competitors would themselves increase prices or limit service to rake in additional revenue.  That happens routinely even in more competitive industries like the airlines — something you realize when you try and check bags and are asked for a credit card.  In Canadian broadband, foreshadowing a non-Net Neutral USA, when one player limits usage and throttles connections, the competitor more often than not joins in.

The other fallacy raised in this useless editorial is that Net Neutrality somehow bars companies from offering all of those wonderful innovative Internet applications.  It’s a common talking point straight out of the industry’s playbook.  Nothing precludes the broadband industry from expanding and improving their networks to offer all of these services.  Under Net Neutrality, they simply wouldn’t be allowed to do it on the backs of their other Internet customers, whose connections are automatically impeded to make room for that “innovation.”  The saddest part is that the only innovation at work here is price-gouging customers instead of upgrading networks.

It would be a huge mistake to impose by fiat a single business model on the carrier side of the Internet.

Tell that to AT&T and Verizon who have exactly the same pricing in their business model for mobile broadband service.  Is it a huge mistake for them?

Specifically, they want the government to prohibit broadband providers (such as Comcast) from discriminating against content providers (such as Google) by, for instance, charging them different rates for different levels of network service. They argue that, in the absence of such regulation, broadband providers can act as self-appointed censors, slowing down or blocking content they don’t like. Keep in mind that in no instance has this actually happened. So far, broadband providers have acted only to slow down noisome bandwidth hogs in order to manage traffic and ensure a high quality of service for the majority of their customers. Net-neutrality proponents counter that other customers — those unhappy about the slowdowns — lack meaningful options; that is, that the market for broadband service is not sufficiently competitive.

It is -shocking- the government would want to make sure broadband providers don’t block or discriminate against other people’s content.  We can’t have that!

The National Review needs to consider studying up on history.  The cable industry, for example, is notorious for blocking competitor access to its content.  To this day, the industry is fighting to keep the cable networks they own off competitors’ lineups.  The same company that provides your broadband service wants to make sure their telephone competitor cannot show a regional sports channel they own.  At least one broadband provider in the United States tried to block competing Voice Over IP phone companies from being used on their broadband service.  The same “blocking” mentality popped up in Canada where a broadband provider purposely blocked a website critical of that company.  Want access to cable programming online but don’t have a cable-TV package?  Good luck.  TV Everywhere projects are specifically designed to block non-cable TV customers from accessing that programming online.

National Review‘s afterthought admission that providers like Comcast were diddling with customers’ Internet speeds is waved away as somehow the fault of bandwidth piggies, another common meme in the talking points packet provided by the broadband industry.  Never mind the company had effectively spied on customers to determine what they were doing with their connections, that they first denied reports they were throttling, effectively throttled everyone — piggies or not — and then quickly stopped when the FCC protested.  If Comcast wasn’t doing anything wrong, why not inform customers first?  After all, the “majority of customers” would want throttling to preserve their “high quality of service,” right?

Of course they don’t, and when customers found out the company charging them good money to provide a service was also trying to systematically reduce its value with speed throttles, they howled in protest.  Who knows what online application would fall next to the throttle?

This would effectively mean applying to broadband providers the rules designed for landline telephone companies in the 1930s. We know Obama wants to emulate FDR, but this is getting ridiculous.

Oh now see how they tried to be funny with the slap against Obama and FDR?  The National Review would have been the magazine defending the railroad robber barons and utility trusts — unregulated monopolies — back during FDR’s day.  They’d be just as wrong then as they are now.  The only New Deal my cable company brought to the table was a $150 monthly broadband bill for exactly the same level of service I had when paying $50.

The current regulatory framework for broadband was constructed by Michael Powell’s Republican-majority FCC, classifying broadband as an “information service.”  It was bureaucratic incompetence because it relied on vaporware authority that a court found, to nobody’s surprise, didn’t exist.  The court does recognize the FCC’s authority to regulate “telecommunications services,” so by simply reclassifying broadband as such, the basic question of authority is solved.  The National Review pretends this will automatically mean 1930s-like regulations as applied to copper wire-phone companies, but that’s not true.  The National Review simply doesn’t want the FCC to have any authority in the first place.

But the FCC’s authority to reclassify broadband to suit its desires is also open to legal challenge. As a result, we are sure to hear louder calls for Congress to regulate the Internet or to grant the FCC the explicit authority to do so. These calls should be ignored. The Internet has thrived in the absence of homogenizing federal regulations, and this organic development should be allowed to continue so long as competition can act as a check on anti-consumer practices.

The calls to enshrine Net Neutrality, stop Internet Overcharging, and force open broadband markets and expand service all do not come in a vacuum.  They are ideas born from past provider abuses that have demanded consumer protections in response.  Who would have dreamed up Net Neutrality if AT&T’s Ed Whitacre didn’t insist Internet traffic could not use his pipes for free.  What about when the industry started toying with developing premium tiers of service that relied on slowing down the connections of their other paying customers.  Why worry about forcing markets open to additional competition?  Oh yeah, because of statements like those from Landel Hobbs (Time Warner Cable COO) who told investors Time Warner Cable could use its market position in broadband to jack up prices whenever they chose.  And they did.

The National Review‘s “hands off” attitude is the same one they’ve had towards banks, and now every American is paying for that mistake.  Let’s not repeat it.

Besides, as it stands these companies compete vigorously against one another in a way that is beneficial to consumers. If one of them makes an unpopular business decision, its customers can go elsewhere. If, however, an unelected FCC chairman dictates uniformity in the services these companies provide, then there is nowhere Americans can turn for innovations the government may have strangled in the cradle.

Where exactly do consumers in rural areas go for alternative broadband when their monopoly phone company provider limits their service or charges them confiscatory pricing?  Where do residents go when both providers limit service?

Consumers have far more power to deal with the “unelected FCC Chairman” than dealing with intransigent phone and cable companies.  Elections every few years have consequences.  There are no elections for Comcast, Verizon, Cox or AT&T.  They’re effectively Providers-for-Life in the communities they serve.

The National Review has little to fear from a broadband dark ages where innovation disappears.  Somehow, an industry that rakes in billions in revenue every year will manage to get by living under basic guidelines that require them to earn their money fairly and spend some of those profits to keep up with very profitable demand.  They’ll sue anyway, of course.  But that could buy us enough time to spur additional competitive choices in a duopolistic market for broadband, helping put to work those free market principles of fierce competition the National Review believes in.

[Article Correction 4/15/2010: The original piece laid blame for the classification of broadband as an “information service” on former FCC Chairman Kevin Martin.  In fact, the classification was made by former FCC Chairman Michael Powell, who served during the first term of the Bush Administration.  We regret the error.]

DC Circuit Court

The U.S. Court of Appeals for the District of Columbia has ruled the Federal Communications Commission has no authority to tell the nation’s largest cable operator to stop throttling broadband traffic crossing its network.  In a widely anticipated 36-page unanimous decision, the Court found the Commission exceeded its authority when it censured Comcast in 2008 for interfering with BitTorrent traffic.

The implications of the ruling could derail Commission plans to enforce Net Neutrality and implement the wide-ranging National Broadband Plan announced in March.

Judge David Tatel, writing for the court, found the Commission erred when it relied on policy statements issued by Congress as the basis for its authority to regulate broadband service:

The teaching of Southwestern Cable, Midwest Video I, Midwest Video II, and NARUC II—that policy statements alone cannot provide the basis for the Commission’s exercise of ancillary authority—derives from the “axiomatic” principle that “administrative agencies may [act] only pursuant to authority delegated to them by Congress.” Policy statements are just that—statements of policy. They are not delegations of regulatory authority.

Tatel

The seed for today’s authority-stripping ruling was first planted by the Bush Administration, which favored telecommunications deregulation.  When the FCC was tasked with finding a way to regulate fast-growing broadband, the Republican majority on the Commission was receptive to industry arguments that over-specific broadband regulation could hamper broadband development and have unintended consequences on private investment.  Urged instead to develop a general policy towards broadband, then FCC Chairman Michael Powell presided over the development of an “Internet Policy Statement” containing four informal principles the agency would rely on when assessing broadband:

1. Consumers are entitled to access the lawful Internet content of their choice.
2. Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. Consumers are entitled to connect their choice of legal devices that do not harm the network.
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.

The Commission’s often vague Internet Policy Statement was fatally flawed from day one, according to some legal experts.  First, the Statement was never codified by the Commission’s own rulemaking procedure.  Second, the Commission framed the broadband policy as a set of “guidelines,” a term considered legally vague.  Third, the FCC relied on the concept of “ancillary” authority — borrowing regulatory authority from so-called “policy statements” coming from Congress, to claim jurisdiction.

Even though some in the industry favored total deregulation of broadband, most providers agreed to adhere to the Four Principles, until Comcast decided it had the right to throttle down the speed of customers using file swapping software.  That violated Principle #2, and the Commission censured Comcast for purposely interfering with network traffic.

Comcast sued, claiming the Commission lacked the authority to regulate its network management policies.  Comcast first denied it was throttling broadband traffic, but later admitted the company was purposely governing the speed available to such software applications to protect their other customers.  Comcast argued that certain file swapping software does in fact harm its network (Principle #3) because the software utilizes as much broadband capacity it can find to move files back and forth.  Since Comcast customers in a neighborhood share a limited amount of bandwidth, a small number of customers ‘maxing out their connections’ running such software could potentially slow down everyone  else in the neighborhood.

Ultimately, today’s court decision agreed with Comcast — the Federal Communications Commission lacks authority over broadband.

It also did the industry one better by warning any regulatory authority the Commission believes it has over broadband better be backed up with specific authority granted by Congress, or the court may find those policies vulnerable as well.

In short, the court just fired a warning shot suggesting the FCC has no authority to enact Net Neutrality protections or the National Broadband Plan, at least not under Kevin Martin’s flawed approach.

The ruling comes as no surprise.  The attorney for the FCC found a hostile reception from the court during oral arguments back in January.  Where was the specific authority, granted by Congress, to oversee broadband policy they asked?  Why is the Commission relying on general principles to govern broadband?  By the end of the session, the FCC’s lead attorney was foreshadowing the imminent loss of his case by asking the court to make the decision against the FCC a teachable moment — giving advice in the ruling as to how to write policies that -will- survive a court test.  The court wasted no time telling the attorney that wasn’t their job.

Public interest groups and others advocating Net Neutrality and the National Broadband Plan issued statements warning about the implications of an industry freed from regulatory oversight.

S. Derek Turner, research director for Free Press:

“The decision has forced the FCC into an existential crisis, leaving the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan. As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. This cannot be an acceptable outcome for the American public and requires immediate FCC action to re-establish legal authority.

“This crisis is not a result of a weak congressional law, but a direct consequence of the previous two Commissions’ misguided and overzealous attempts to completely deregulate America’s communications networks. Past FCC actions created a huge loophole in the law that leaves the agency unable to protect consumer privacy or promote universal broadband access.

“The FCC must have the authority to carry out its consumer protection and public interest mission in the 21st-century broadband marketplace. The current Commission did not create this existential crisis, but it now has no choice but to face these tough jurisdictional questions head on, and do what is necessary to protect consumers and promote competition.”

Ryan Singel – Wired Magazine:

A broadband company could, for instance, ink a deal with Microsoft to transfer all attempts to reach Google.com to Bing.com. The only recourse a user would have, under the ruling, would be to switch to a different provider — assuming, of course, they had an alternative to switch to.

Companies can also now prohibit you from using a wireless router you bought at the store, forcing you to use one they rent out — just as they do with cable boxes. They could also decide to charge you a fee every time you upgrade your computer, or even block you from using certain models, just as the nation’s mobile phone carriers do today.

While this might seem like a win for the nation’s broadband and wireless companies, the ruling could be so strong that it boomerangs on them. For instance, if the FCC is left without the power to implement key portions of the National Broadband Plan — a so-far popular idea — then Congress or the FCC may have to find a way to restore power to the commission. That could leave the FCC stronger than it was before the ruling.

Gigi Sohn, Public Knowledge:

“Today’s Appeals Court decision means there are no protections in the law for consumers’ broadband services. Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others. In addition, as of now, the Federal Communications Commission’s (FCC) ambitious National Broadband Plan to help boost the economy is in legal limbo. The ability of the FCC to support broadband through universal service is in jeopardy, as is the agency’s ability to protect consumer privacy, ensure access to broadband-based emergency communications or promote access to broadband for the disabled. In our view, the FCC needs to move quickly and decisively to make sure that consumers are not left at the mercy of telephone and cable companies.

“If it chooses, the Commission can continue to roll the dice and let the courts decide each time it wants to try to put some consumer protections on a broadband service. The court decision left open that option.

“We have a different idea. The FCC should immediately start a proceeding bringing Internet access service back under some common carrier regulation similar to that used for decades. Some parts of the Communications Act, which prohibit unjust and unreasonable discrimination, could be applied here. The Commission would not have to impose a heavy regulatory burden on the telephone and cable companies, yet consumers could once again have the benefit of legal protections and the Broadband Plan could go forward. The American public deserves no less.

“We need to emphasize that no one is talking about regulating ‘the Internet.’ No one is talking about regulating search engines or Web sites. We are talking about re-applying policies to a telecommunications service that the FCC incorrectly abandoned. That is the most simple solution and it’s the correct one.”

The FCC, despite the decisive loss in court, claims it will carry on.

“Today’s decision invalidated the prior commission’s approach, but in no way disagreed with the importance of preserving a free and open Internet,” FCC spokeswoman Jen Howard said in a statement.

Nick Summers, writing for Newsweek’s ‘Techtonic Shifts’ blog, believes FCC Chairman Julius Genachowski is likely to aggressively respond to today’s court decision by employing the “nuclear option,” reclassifying broadband Internet as a communication service just like the nation’s phone system, bringing it fully under FCC regulation.

Would Genachowski go that far, undoing virtually all of the Bush-era FCC’s policies? Yes. In September, he gave a major address about net neutrality without ever actually uttering the phrase. But he concluded with these strong words:

“We are here because 40 years ago, a bunch of researchers in a lab changed the way computers interact and, as a result, changed the world. We are here because those Internet pioneers had unique insights about the power of open networks to transform lives for the better, and they did something about it. Our work now is to preserve the brilliance of what they contributed to our country and the world. It’s to make sure that, in the 21st century, the garage, the basement, and the dorm room remain places where innovators can not only dream but bring their dreams to life. And no one should be neutral about that.”

The importance that Genachowski et al. place on net neutrality has never remotely been in doubt. In February 2009, months before he was confirmed as FCC chairman, at a private dinner in Manhattan, Genachowski spoke about the Internet’s role in the election of President Obama and in America’s future. He was circumspect about details, but Genachowski spoke unreservedly about the need for certain core protections if the country was to remain at the fore of the Internet revolution. It’s just that important.

[flv]http://www.phillipdampier.com/video/CNBC FCC Loses Comcast Case 4-6-10.flv[/flv]

CNBC reports the FCC’s loss in court could open the door to metered broadband service in the United States.  (2 minutes)

[Article Correction 4/15/2010: The original piece laid blame for the classification of broadband as an “information service” on former FCC Chairman Kevin Martin.  In fact, the classification was made by former FCC Chairman Michael Powell, who served during the first term of the Bush Administration.  We regret the error.]

FCC Headquarters in Washington, D.C.

America’s broadband blueprint could wither on the vine of good intentions if some of America’s largest telecommunications companies prevail in efforts to derail the parts they dislike.  This morning, Reuters reports Julius Genachowski, the chairman of the Federal Communications Commission, and his circle of advisers are weighing options to try and keep the Obama Administration’s broadband policies on track.

They have their work cut out for them.

Net Neutrality vs. Restraint of Trade

In January, the Federal District Court of Appeals for the District of Columbia gave a hostile reception to the Commission’s argument it had the authority to order Comcast to stop throttling the speeds of their broadband customers.  Although Comcast complied, they also filed suit claiming the FCC overstepped its boundaries when it interfered with the company’s business practices.

A favorable court ruling for Comcast could create major problems for the Obama Administration’s Net Neutrality plans and broadband industry oversight in general.

Those monitoring the DC Circuit suspect the court will find for Comcast, but to what degree is unknown.  A narrow ruling could simply find the FCC erred in how it censured Comcast.  A broader ruling could require the Commission to seek more explicit authority from Congress to oversee broadband.  A sweeping ruling could wipe away the Commission’s ability to involve itself in broadband oversight, period.

Plan B: Regulate Broadband Under Existing Telephone Rules

One way around a court ruling unfavorable to Commission oversight powers would be to regulate broadband services under the existing rules governing phone service.  The most controversial aspect of those rules are found in “common carrier” provisions — including those that could potentially force open the broadband networks offered by cable and telephone companies to third party competitors.

While telephone companies have grudgingly accepted their more regulated status under the Commission’s regulatory service model, broadening it to also cover broadband will start World War III, according to Susan Crawford, former special assistant to President Barack Obama for science, technology, and innovation policy.

With billions in profits at stake, large telecommunications companies from AT&T and Verizon on the telephone side to Comcast and Time Warner Cable on the cable side would likely file lawsuits demanding such regulatory policies be deemed unconstitutional or also exceed Commission authority.

One warning sign that Obama’s FCC is not the same as the one in place under President Bush arrived in last week’s approval of a merger between Skyterra, a satellite company planning a nationwide 4G mobile network, and private capital equity firm Harbinger.  The FCC included provisions in the approval permitting the agency to review any plans by SkyTerra to lease or provide wholesale access of its spectrum to AT&T Mobility or Verizon Wireless.  In effect, the Commission can veto moves by the two mega-carriers to become even larger through SkyTerra.

AT&T and Verizon Wireless called the FCC’s approval terms “flawed” and “manifestly unwise and potentially unlawful.”

Congressional Action: Reopening the Telecommunications Act of 1996

The presidential signing ceremony for the 1996 Telecommunications Act

Another possible option for the FCC is to seek expanded authority with the passage of new telecommunications laws enacted in Congress.  The last wholesale review of telecom policy was during the second term of the Clinton Administration.  The 1996 Telecommunications Act was a gift to the industry, delivering sweeping deregulation, allowing increased consolidation and reduced oversight.

Opening the door to a 2010 Telecom Act would bring millions of dollars in lobbying by large players to preserve, protect, or expand their positions in the marketplace.  Many providers still favor telecommunications reform that would further deregulate their businesses.

Amit Schejter, professor of telecommunications policy at Penn State University, told Reuters he doesn’t believe Congress can pass such legislation at this time, especially with a divided, partisan Congress.

Not everyone is concerned that the FCC’s position between a rock and a hard place is all that unusual.  The last administration’s FCC rarely tangled with the telecommunications industry.  That Chairman Genachowski may be leading the Commission in a different direction is welcome news for some.

“The only reason this looks new and shocking is that for so long the FCC hasn’t made a decision opposed by a major company,” Ben Scott, policy director for Free Press told the Washington Post. “The FCC has spars with companies on a regular basis and this is good news.”