FCC chair's net neutrality push faces uphill battle

By Cecilia Kang

update 2:52 p.m.: Congressman Fred Upton (R-Mi.) warns of FCC hearings; Commissioner Mignon Clyburn expresses support of net neutrality but leaves questions of support for current proposal. Rep. Ed Markey (D-Mass.) criticizes paid priority



A controversial net neutrality proposal drew immediate criticism by Republican members of the Federal Communications Commission and tempered support by Democratic allies, highlighting the difficulty Chairman Julius Genachowski will have forming new rules.

The two Republican members of the Federal Communications Commission said Wednesday that they opposed Genachowski's "reckless" proposal that the agency has dubious ability to enact.

They were joined by Republican lawmakers who promised to call Genachowski to Capitol Hill when they take over the House majority in January for hearings on the proposal.

"I"m going to be like a dog on a Frisbee with this one," said Rep. Fred Upton (R-Mi.) in a conference call with reporters. The lawmaker is seeking the chairmanship of the Commerce and Energy Committee.

Democratic FCC member Michael Copps, meanwhile, said the proposal was a start and indicated that he would work with companies, consumers and interest groups in coming weeks to ensure "real network neutrality."

He and Democratic Commissioner Mignon Clyburn have been staunch supporters of creating net neutrality rules and reasserting the FCC's authority as a broadband regulator. A proposal to define broadband as a telecom service wasn't included in Genachowski's proposal. And supporters of net neutrality such as Rep. Ed Markey (D-Mass.) said the proposal doesn't go far enough to regulate wireless providers and the practice of businesses paying for priority for better delivery of their content.

"It's no secret that I am looking for the strongest protections we can get to preserve an Open Internet, built on the most secure legal foundations so we don't find ourselves in court every other month," Copps said in a statement. His office didn't respond to questions of whether he would vote in favor of Genachowski's proposal as introduced Wednesday.

Clyburn's said in a release that she supports net neutrality and thinks "it is appropriate for the FCC to safeguard it" with "clear rules of road." But she stressed it is a draft of rules that will be discussed by the five commissioners over the next three weeks.

The cautious support of Genachowski's proposal -- which he touts as a compromise of various industry and consumer interests -- signals work ahead for the head of the agency to convince his Democratic allies to give him the support he needs for a majority of votes.

Genachowski drew more pointed feedback from Republicans.

Commissioners Robert McDowell and Meredith Attwell Baker issued comments as Genachowski delivered a speech on his proposal, saying the move has been criticized strongly by members of both parties in Congress. With a Republican-led House, the plan will likely be challenged, they and analysts said.

"This is a mistake," Baker said. "We do not have authority to act."

Genochowski proposed rules that include requiring transparency from broadband providers; prohibiting the blocking of lawful content, apps, services, and the connection of non-harmful devices to the network; barring "unreasonable discrimination" in transmitting lawful network traffic; and other rules. The chairman also said the FCC "would closely monitor the development of the mobile broadband market and be prepared to step in to further address anti-competitive or anti-consumer conduct as appropriate."

Genachowski's proposal stands on shaky ground because the chairman wants to try to create rules while the agency has questionable status over broadband access providers. A federal court threw the FCC's authority into question last spring when it said the agency should not have acted to sanction Comcast for blocking traffic on its network.

"Whether the Internet should be regulated is a decision best left to the directly elected representatives of the American people," Baker said.

McDowell said in a statement that Genachowski's months-long attempt to get broadband providers and Web giants such as Google and Skype to agree on a regulatory compromise resulted in a plan that "smacks more of coercion than consensus or compromise."

Craigslist founder Craig Newmark and investor Ron Conway hailed Genachowski's policy Wednesday. But the proposal also drew criticism from lawmakers such as Sen. Kay Bailey Hutchison (R-Tex.), ranking member of the Senate Commerce Committee, who advised Genachowski to "stand down" on his push.

"I have not seen any evidence to date that would justify this regulatory overreach," she said.

Related stories:

FCC Chair announces net neutrality push but without asserting authority over broadband

Speech by FCC chair on net neutrality