Save Access

from: TMP Cafe

When A Net Neutrality Tie Is A Win

By Art Brodsky

The news stories following the Senate Commerce Committee vote on Net Neutrality pictured it as a defeat for the forces of good. Don't believe it. Even though the Net Neutrality amendment failed on a tie vote, we got ourselves into a good position for the rest of the game.

The real bad news is that the giveaway to America's biggest companies continues.

There wasn't a lot to cheer about yesterday when the Senate Commerce Committee approved a new monster of a telecom bill. The draft started out at 159 pages, and after all of the amendments are added up, who knows how much more material the forces for smaller government will have added to it.

This much we do know. As one comes to expect from these things, the big corporations got pretty much what they wanted. The movie companies got the right to set the rules for what consumers can do with over-the-air digital TV signals and the authority for the Federal Communications Commission (FCC) to enforce Hollywood's business plans. The shorthand for this issue is the "broadcast flag," the name for the bits in the signal that will tell your electronics what your rights are. The bill, if it ever became law, would overturn a case brought by Public Knowledge, (my day-job employer), which beat back the FCC's broadcast-flag rule in court last year.

The record companies got the right to use the FCC to cripple the satellite and terrestrial digital radio businesses by curtailing consumers' ability to store music. It was unfortunate that neither of these items, the broadcast flag or its radio counterpart, was at all controversial when the Committee discussed the bill over the course of three days.

The telephone companies got the right to get into the video business quickly, without a requirement that they actually serve an entire franchising area and without pesky local oversight. The cable companies got the right to get out from pesky local oversight when their current franchises run out. The cellular companies, largely owned by the phone companies, got themselves exempted from state consumer protections. Such a deal for all -- consumers excepted.

Ah, but then we come to Net Neutrality, which sucked the oxygen out of the rest of the debate. For the record, the amendment by Sens. Olympia Snowe (R-Maine) and Byron Dorgan (D-N.D.) failed on an 11-to-11 tie. Somehow this was portrayed in many news stories as a defeat for the tech industry. Don't believe it.

Playing catch up, those in favor of preserving the open character of the Internet had a big job to do. The telephone companies are spending millions of dollars. They have several full-page ads in the Washington Post and other publications. They flood the Sunday morning talk shows with their ads. The lobbyists working on their behalf filled the very big room where the Commerce Committee met.

And by holding them to a tie, the coalition of public interest groups from all political ideologies and the tech companies kept the issue alive and made the future progress of the legislation much more problematic.

The debate among the Senators was so intense from the start that Chairman Ted Stevens got himself all wound up in a several-minute-long rant that ended up making absolutely no sense whatsoever. He calmed down later, but there were some scary moments for those concerned about who was making Internet policy as we asked ourselves how much these guys really know about what they are doing. At one point Stevens said the tech companies had spent more money on the Net Neutrality amendment than had been spent before on any amendment. One had only to look around the room at the telecom crowd to see how far off base that was.

There were, of course, the broadest contradictions in voting. Sen. George Allen (R-Va.), possible presidential candidate, made an impassioned speech on behalf of the Internet as an engine of economic growth, etc., while arguing to make the moratorium on taxing Internet access permanent. When it came to actually protecting the Internet from being taken over by the telephone and cable companies, Allen shut up and voted with said telephone and cable companies, as did every other Republican but the courageous Snowe, who delivered a couple of methodical, rational statements on the need to keep the Internet open.

These are the same Senators who want to keep government away from regulating the Internet who had earlier voted to allow government to control the design of consumer electronics and to limit consumer rights to use lawfully obtained content (see broadcast flag and digital radio content controls). It would have been nice had they maintained a consistent philosophy and had the issue not turned into a partisan debate. Unfortunately, the concept of "regulation," even minimal regulation which had been in effect since 1934 and was lifted just last September, was too much for Stevens and the others.

In the end, it was a concerted effort by the public interest groups and tech companies along with thousands and thousands of people across the country who contacted their Senators that gave the Committee Democrats and Snowe the courage to vote to protect the Internet.

The big question now is what will happen going forward. To Sen. John Ensign (R-Nev.), Net Neutrality is the "poison pill" that will sink the legislation because the House won't approve. Maybe. Certainly the absence of Net Neutrality could have the same effect.

But by giving a good showing on Net Neutrality, the forces for Internet Freedom (to use Dorgan's phrase) guaranteed that the issue would become a part of any future negotiations if Stevens tries to take the bill to the Senate floor.

At this point, there are enough votes in the Senate to keep the bill bottled up, and Sen. Ron Wyden (D-Ore.), an early advocate of Net Neutrality (and of the Internet tax moratorium), has said he will hold up any bill that doesn't have Net Neutrality in it.

It could come down to a simple question of what the telephone companies want more -- the Federal streamlined video franchise or their non-neutral Internet. Accept a non-discrimination policy for the Internet and they could ease the path into the promised land of cable. Reject it and work on a state-by-state basis to get statewide cable franchises as they have in 27 states, and the phone companies take their chances on licensing which could have tougher conditions than the Federal law contemplates.

It's not an easy choice, but with the stakes this high, choices aren't supposed to be easy.