Lawmakers' reaction to FCC's broadband move could signal hard fight ahead

At issue is how the FCC ought to regain its authority to regulate broadband after a federal court stipulated a 1996 law does not give the commission the explicit right to govern how providers handle their networks.

The plan Genachowski put forth Thursday would solve the problem by treating broadband Internet in some cases as a "telecommunications service" that would be subject to some of the same rules that govern telephone companies. This new classification could then allow the agency to move ahead with the big-ticket items in its National Broadband Plan -- one of which is net neutrality, the principle that networks ought to treat all traffic equally.

Net neutrality advocates in Congress were quick to praise the FCC's plan of action on Thursday. Sen. John Kerry (D-Mass.), the chairman of the Senate subcommittee that handles Internet issues, heralded Genachowski's announcement as a striking example of leadership. Rep. Ed Markey (D-Mass.) also offered the FCC his stamp of approval.

"With this decision, the FCC will ensure that the agency remains the 'cop on the beat,' protecting consumers and competition on the World Wide Web," said Markey. His comment arrived a day after Rep. Henry Waxman (D-Calif) and Sen. Jay Rockefeller (D-W.Va.), chairmen of their chambers' commerce committees, implored the agency to take this route in a letter earlier this week.

Rep. Anthony Weiner (D-N.Y.), the vice chair of the House Subcommittee on Communications, Technology and the Internet, noted the FCC had taken "correct and vital action to protect consumers and a free Internet." And Sen. Byron Dorgan (D-N.D.), along with FCC Commissioner Michael Copps, only a day earlier called on the agency to stand its ground on open Internet, stressing it would be "essential to a dynamic democracy."

Speaker Nancy Pelosi (D-Calif.) later in the evening commended Genachowski for taking a "targeted approach to expanding access, protecting consumers and preserving openness and competition on the internet."

"It is imperative for innovators and consumers alike that the Federal Communications Commission continues to embrace the principles of nondiscrimination and transparency, so our policy reflects, and provides for, the growth of the digital economy and free speech for all Americans,” she said in a statement.

But Republican reaction was largely negative, questioning the impact of the FCC's decision to forge ahead despite industry opposition.

House GOP Leader John Boehner (Ohio) invoked the language of the healthcare debate to decry the FCC's "job-killing big government scheme." Rep. Mike Rogers (R-Mich.), who sits on the House subcommittee chiefly handling the Web, also slammed the FCC's move as a "sharp turn in the wrong direction that could ultimately take the future of the Internet out of the hands of brilliant innovators and place it into the hands of bureaucrats."

Sen. Orrin Hatch (R-Utah), chairman of the Senate Republican High-Tech Task Force, later hit the commission for failing to "take no for an answer."

"Just over a month after an appeals court ruled it had overstepped its bounds, the FCC is at it again abusing existing regulation governing phone networks to stifle freedom and innovation on the Internet,” Hatch said. “The only reason they are taking this path is because there’s no way they can get far-reaching and costly ‘net-neutrality’ legislation through Congress."

The FCC's two Republican members seemed to agree. Both Commissioners Robert McDowell and Meredith Baker excoriated their colleagues on Thursday for pushing a proposal that is "disappointing and deeply concerns us."

"It is neither a light-touch approach, nor a third way. Instead, it is a stark departure from the long-established bipartisan framework for addressing broadband regulation that has led to billions in investment and untold consumer opportunities," the commissioners said. "It also poses serious ramifications across the globe."

These early divisions could prove especially troublesome for Genachowski, who initiated the rule-making process primarily to shepherd the National Broadband Plan's proposals into law. If telecommunication companies and broadband providers take the FCC to court, though, it might require a robust act of Congress to break the legal bind and allow the commission to finish its work.

However, the Telecommunications Act of 1996 -- upon which this whole debate pivots -- took years to construct, industry analysts note, and revising it would likely take just as long. That could present critical challenges to the FCC, which hoped to embark on its souped-up broadband campaign immediately.

"This is going to take all of the oxygen out of the room," noted an industry source to Hillicon Valley on Thursday, who later predicted it would "paralyze the broadband plan." He later added it could take "five to six years" for the legal disputes alone to subside.

(This post was updated at 4:33 p.m. with Pelosi's statement.)

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