"I believe that net neutrality is the First Amendment issue of our time," declared Democratic Senator Al Franken at Thursday's public hearing on the Internet, held in his home state of Minnesota.

"Unless it's freedom of religion," he added, "which, until last week, I thought we had kind of worked out."

The audience at Minneapolis' South High School cracked up over Franken's reference to the Ground Zero Mosque slugfest. But this was a warm-up rally for their own cause—getting the Federal Communications Commission to pass rules that would partially reclassify ISPs as common carriers and apply various neutrality provision to their activities. Two Democratic members of the FCC also attended the event: Michael Copps and Mignon Clyburn.

"We're standing at a precipice," warned Josh Silver of Free Press as he introduced Franken. "Despite the Internet's vital importance to our democracy, there are no laws on the books that ensure net neutrality."

In April a federal appeals court struck down the FCC's attempt to sanction the P2P blocking practices of Comcast based on a classification of ISPs as "information" services. The setback effectively forced the pro-net neutrality wing of the agency to consider the common carrier route.

The only thing

The hearing also comes on the heels of Google and Verizon's proposal to limit the FCC's oversight in this area—essentially putting it in the hands of some kind of industry governance body that would tell the agency when to ding an ISP for discriminating against a content provider (limited to $2 million per ding).

Nondiscrimination principles, as this body chose to define them, would apply to wireline broadband, but not wireless, with exemptions for "additional" or "differentiated" services that could be subject to "traffic prioritization."

"The FCC would publish an annual report on the effect of these additional services," the proposal recommends, "and immediately report if it finds at any time that these services threaten the meaningful availability of broadband Internet access services."

Franken had choice words for this plan, none of them good.

Google and Verizon's scheme empowers the FCC to, "get this—'publish a report'," he dryly commented, while his audience laughed again.

"But there's an even bigger issue here. It's that when government will not act, corporations will. And unlike government agencies, which have a legal responsibility to protect American consumers, the only thing corporations care about, the only thing that they have a legal duty to promote, is their bottom line."

"We can't let companies write the rules that they're supposed to follow," Franken added, "because if that happens those rules are going to be written only to protect corporations."

Gaggle this

That "if government will not act" line was another oblique dig, this time at the FCC—these days widely criticized for not moving faster on its reclassification plan. Instead, the agency has been holding on-again, off-again informal discussions with Verizon, Google, Skype, and several trade associations on a framework for Congress to consider, a move that may have facilitated the Google/Verizon proposal.

FCC Commissioner Michael Copps accepted Franken's implied criticism, calling the agency's eight-year-long practice of classifying ISPs as "information" rather than "telecommunications" services a dodge to avoid providing common carrier protections to consumers. "Our job now is to correct course by reclassifying broadband as the telecommunications service that it is," Copps told the applauding crowd.

As for Verizon and Google (or, as Copps called them, the "Verizon-Google gaggle"), their proposal "would almost completely exclude wireless broadband from the future of Internet openness, even though that's where everybody is migrating," he charged. "Don't we want that part of the Internet to be free from gatekeepers too?"

They want a "tiered Internet," Copps continued. "Gated communities for the affluent. So for example, a special Verizon-Google or Comcast-NBC service could come to you extra quickly, with special quality of service or priority, and therefore decrease the amount of bandwidth left for the open Internet that you and I know today."

"I suppose you can't blame companies for seeking to protect their own interests," the Commissioner concluded. "But you can blame policy makers if we let them get away with it."

In her remarks, Mignon Clyburn cited a study indicating that minority consumers more often get their Internet via wireless handsets than from laptops or desktop computers. "So any proposal that treats fixed and mobile broadband differently would be impossible for me to support," Clyburn declared.

Very, very dangerous

Franken didn't limit his comments to net neutrality. He also touched on another of his favorite matters before the FCC—the proposed merger of Comcast and NBC Universal. Comcast wrapped up the comment process on Thursday with a reply to various critics of the marriage. Now, after a seven-month application period, the ball is in the FCC and Department of Justice's court.

"If Comcast is allowed to merge with NBC," Franken warned, "it will not be long before Verizon or AT&T say, 'You know what? We better buy Disney/ABC. We better buy CBS/Viacom.' And what you're going to have is a handful of companies that own all the programming and provide all the Internet service. So a handful of companies will have their hands on all of the information that all of us get. And that is very, very dangerous."

The senator's comments raise an interesting question. To what extent can the FCC and DoJ base their analysis of the potentially harmful effects of the merger on what other companies might do in its aftermath? Probably not a whole lot.

But Internet-related problems certainly hang over the proposed union, such as the fate of Hulu.com, the online TV service in which Comcast would acquire a 32 percent stake. Several months ago, Franken's colleague Sen. Herb Kohl (D-WI) wondered out loud whether the cable giant sees Hulu as an asset or a threat to its cable TV network.

"Concerns that the transaction will eliminate Hulu as a free, advertising-supported service are misplaced," Comcast's new filing insists. "NBCU has long-term contractual commitments to provide content to Hulu on an ad-supported basis, and these commitments will not be affected by the transaction."

Expect Internet and antitrust questions to be on the table as the FCC grapples with net neutrality and the proposed Comcast/NBCU deal. The agency's next Open Commission meeting is scheduled for Thursday, September 23.