Representative Henry Waxman (D-CA) has thrown in the towel on net neutrality—at least for now. The Chair of the House Energy and Commerce Committee says he can't get any Republican support for his widely reported draft legislation on Open Internet rules.

"With great regret, I must report that Ranking Member Barton [R-TX] has informed me that support for this legislation will not be forthcoming at this time," Waxman declared in a statement sent to the press. "This development is a loss for consumers and a gain only for the extremes. We need to break the deadlock on net neutrality so that we can focus on building the most open and robust Internet possible."

No threats

Leaked press versions of the draft proposal bore considerable resemblance to the Google/Verizon net neutrality plan. By those reports, the bill would have forbidden ISPs to "unjustly or unreasonably discriminate in transmitting lawful traffic over a consumer's wireline broadband Internet access service" and given the FCC some "case-by-case" fine making authority (up to $2 million a ding). But it would have denied the agency any authority to regulate ISPs as common carriers, and excluded wireless broadband from the scenario.

It appears, however, that the draft proposal had support from various public interest groups, including the Consumer Federation of America, and was less Verizon-Google-like than represented. Here's how Waxman characterized the legislation in his press release (note that wireless is included in his summary). It would

Restore the FCC's authority to prevent blocking of Internet content, applications, and services, which was struck down by the court in the Comcast decision;

Prevent phone and cable companies from unjustly or unreasonably discriminating against any lawful Internet traffic;

Prohibit wireless broadband providers from blocking websites, as well as applications that compete with voice or video conferencing, while preserving the FCC's authority to adopt additional safeguards under its existing authorities; and

Direct the FCC to issue transparency regulations so consumers know the price, performance, and network management practices of their broadband providers.

Under our proposal, the FCC could begin enforcing these open Internet rules immediately - with maximum fines increased from $75,000 to $2,000,000 for violations.

"And," Waxman added, "our approach would provide the phone and cable companies with protection from the threat of reclassification for two years." Presumably this referred to the prospect of reclassifying ISPs as "Title II" common carriers, as per the Telecommunications Act. The FCC proposed that measure some months ago, to the outrage of cable and telco ISPs.

Halfway punt

Why did Barton refuse to support this proposal? He's got a statement on the Republican side of the House Commerce Committee website.

"I have consulted with Republican leadership and members of the Energy and Commerce Committee, and there is a widespread view that there is not sufficient time to ensure that Chairman Waxman's proposal will keep the Internet open without chilling innovation and job creation," Barton explained.

"If the majority wants to work on a solution to continue a free and open Internet, let's consider the issue deliberately, rather than punting with a halfway measure two days before the end of Congress."

Indeed, over the last two days most GOP folk on Capitol Hill have pretty much gone Tea Party on the Waxman plan (whatever it actually was at any given moment). For instance, one Rep called it an "attempt to control commercial activity over the Internet before [the Democrats] lose control of Congress."

No closed doors

As for Waxman, he seems ok about the whole thing.

"I do not close the door on moving legislation this Congress," his press statement concluded. "Cooler heads may prevail after the elections. But I want my position to be clear: my goal is the best outcome for consumers. If our efforts to find bipartisan consensus fail, the FCC should move forward under Title II. The bottom line is that we must protect the open Internet. If Congress can't act, the FCC must."

This development definitely drives this clunker back to the FCC's garage. The Commission has been kicking the net neutrality ball down the road for months. The matter is noticeably absent from the agency's October Open Commission meeting, as it was in September.

And public interest groups are already making the obvious point. If Congress can't deal with this question, it's time for the FCC to punt.

"We are in full agreement with Chairman Waxman that the FCC must act now to protect consumers by reinstating its authority over broadband," declared Gigi Sohn at Public Knowledge. "We can wait no longer. We expect those members of Congress who argued that it was Congress' duty to set telecommunications policy would recognize the authority of the FCC in the absence of legislation."