A week ago, media reformistas were supposedly “celebrating” the near-avoidance of the death of network neutrality when the FCC declared discussions between it, Google, and Verizon had fallen through.
The plan would place the FCC in an “oversight” role to make sure content is not discriminated against online simply for the sake of what it is. Notable, however, is the FCC’s secondary position in the regulation of network neutrality; companies will work out their own deals, and then hand them over to the FCC for rubber-stampage.
Given the trustworthiness of the FCC, this is a dubious plan at best. It has generated a lot of reaction, including a tepid protest at Google HQ and op-eds from former Obama administration telecom policy officials practically begging the FCC to grow a pair.
Problem is, the FCC’s already been emasculated, which is why content-service providers (like Google) and broadband network service providers (like Verizon) feel like they can strike their own deals now without FCC interference. Here’s why:
1. The FCC’s inherent authority to regulate network neutrality was eviscerated in the Comcast v. FCC federal court decision. Even if the FCC decides to reclassify broadband and hopes to regain some regulatory power through alternate means, you can bet Big Telecom (and Big Content) will line up to shoot the FCC’s proposal down in court.
2. Without explicit Congressional authority to back up whatever the FCC comes up with, the plan remains wide-open to legal challenge. Congress is gridlocked; don’t expect their assistance anytime soon, regardless of whatever any individual Representative or Senator says.
3. The very fact that Google and Verizon have conceived this “deal” – despite its supposed nixing – says all you need to know about what Big Telecom and Content think of the FCC’s incipient authority in this area. It is no surprise that other broadband ISPs are lining up in support of the Google/Verizon “framework” – they know the FCC can’t do jack sh*t to them.
All of this didn’t have to happen: had the Democratic majority of FCC Commissioners been more organized on this important issue, this might have been pre-empted (at best). The only one with stones appears to be Commissioner Michael Copps, the only Commissioner to to note the deal (in a whopping four-line statement), who describes the Google/Verizon “framework” as a clarion call “to put the interests of consumers in front of the interests of giant corporations.”
Good luck with that: regardless of what the FCC does next, this saga will be decided in the Congress or courts, neither of which I have much faith in. On this particular issue, the FCC’s just about made itself irrelevant now and, for that matter, so have the reformistas.