Network neutrality debate may be headed back to FCC

Introduction

Despite reports to the contrary, the debate over network neutrality is far from over.

On Tuesday, an appeals court overturned rules that bar broadband providers from blocking or slowing Internet traffic. But the court also suggested that the Federal Communications Commission can take another shot at the issue by reconsidering how it regulates the Internet.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC doesn’t have the authority to require broadband providers to treat online content equally — leaving them free to manipulate online traffic or charge companies such as Netflix Inc. a premium for faster delivery.

If the FCC decides to take up the issue again, it will face some of the most formidable lobbyists in town.

Three Internet service providers were among the top 20 lobbying spenders in the first nine months of 2013. Combined they hired more than 350 lobbyists, 14 of whom were former members of Congress.

• Comcast Corp., the nation’s largest cable operator, spent almost $14 million during the period, the fifth-largest amount of all corporate lobbying spending, and hired 98 lobbyists, according to the Center for Responsive Politics.
• AT&T Inc. hired 89 lobbyists and spent $12.3 million, ranking it 11th among the top spenders.
• Verizon Communications Inc., the plaintiff in the suit against the FCC, came in at No. 17 with $10.1 million in spending, hiring 96 lobbyists.

Also among the top lobbying spenders is the National Cable and Telecommunications Association, which includes Comcast and Time Warner Cable Inc. as members. NCTA spent $13.3 million in the first nine months of 2013, ranking it ninth among the top spending lobbyists, according to CRP. The association, which opposed the net neutrality rules, hired 73 lobbyists, three of whom were former members of Congress.

Add in another $5.8 million from Time Warner Cable, the second-largest cable company in the nation, and the total from these broadband providers and their association surpassed $55 million in the first nine months of 2013. That’s about as much as the top health and pharmaceutical industries spent on lobbying combined.

The FCC’s options include an appeal — which agency Chairman Tom Wheeler said the commission was considering — in addition to rethinking the way it approaches broadband regulation.

One alternative includes classifying broadband providers as telecommunications services, a designation that would allow the agency to regulate Internet providers much like telephone companies. Such a move could lead to stricter regulations and stand a better chance of holding up in court.

But the FCC abandoned that idea months before passing the net neutrality rules in December 2010, choosing a less controversial but more legally suspect definition of broadband as an information service.

A move to regulate ISPs as telecommunications services would certainly invite political pressure from members of Congress and unleash millions of dollars more from the telecommunications and cable companies, a fight Wheeler, formerly head of the Cellular Telecommunications & Internet Association and the high spending NCTA, may not want to take on.

As for Verizon, the company said in a statement that it was still “committed to an open Internet.”

“One thing is for sure: today’s decision will not change consumers’ ability to access and use the Internet as they do now,” the company said. “Verizon has been and remains committed to the open Internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want.”