Democrats Back FCC in Anticipated Efforts to Regulate Broadband

In the wake of the Court of Appeals judgment last week that the Federal Communications Commission (FCC) lacks sufficient authority to regulate broadband services, senior congressional Democrats are reaffirming their support for alternative methods of executing what some critics charge would be a de facto government takeover of the internet.

Rep. Ed Markey, a Democrat from Massachusetts and co-author of the House’s Internet Freedom Preservation Act, said the FCC should “take any actions necessary to ensure that consumers and competition are protected on the internet,” and offered to “continue to work with my colleagues in Congress to provide the Commission any additional authority it may need to ensure the openness of the Internet for consumers, innovators and investors.”

Markey, like FCC Chairman Julius Genachowski, is a backer of net neutrality, a policy that would inadvertently be instituted were the FCC to reclassify broadband services under existing rules relating to telephone services, and directly instituted were his bill passed and signed into law.

Fellow Massachusetts Democrat Sen. John Kerry, meanwhile, insisted that while it is within the authority of the FCC to reclassify broadband he is not advocating such aggressive action.

“I am not advocating that the FCC reclassify broadband services as a result of this decision,” Kerry, the chairman of the Senate Commerce Committee, said. “But I absolutely believe they maintain that legal authority and it would be entirely consistent with the history of communications laws in our country if they did.”

Kerry went on to say that Congress did not intend for “cable and telephone broadband internet service providers to fall outside of the authority of the FCC,” and therefore that he would be willing to work with “all interested parties” on the construction of “a new legal and regulatory framework for broadband, especially if reclassifying broadband as a telecommunications service proves too difficult to administer.”

Democratic FCC commissioners, for their part, seem determined to attempt to reclassify broadband as a Title II service, which (if done successfully) would enable the agency to effectively regulate the internet and institute net neutrality by the back door.

“The only way the Commission can make lemonade out of this lemon of a decision is to do now what should have been done years ago: treat broadband as the telecommunications service it is,” Michael J. Copps said. “We should straighten this broadband classification mess out before the first day of summer.”

Observers say that if the FCC does what is being discussed, it is likely to kick off “World War III,” with broadband providers effectively going to battle with the agency in what could be a politically messy showdown, in which other groups who firmly oppose net neutrality–including, prominently, minority and civil rights organizations– could also weigh in.

Congressional Republicans have vehemently opposed both plans to institute net neutrality and to pursue reclassification, with Rep. Joe Barton saying last month that “The worst idea I’ve heard in years is reclassification.” He added that “I don’t want to regulate broadband like we regulated telephone services in the 1930s.” In addition, Republican Rep. Mike Rogers of Michigan and Genachowski had a lengthy exchange when Genachowski appeared before House members to discuss regulation of the internet. Rep. Rogers’ office says he does not believe such regulation via direct institution of net neutrality or reclassification is the best way to encourage innovation and increase investment in broadband infrastructure, two ostensible goals of net neutrality advocates.

Observers say it bears noting in all of this, however, that, skepticism of and opposition to net neutrality has not been confined just to Republican ranks: Last year, 72 House Democrats signaled doubts about net neutrality in a letter to Genachowski.