Broadband Providers to FCC: Don't 'Deem and Pass'

Last week, three major Internet Service Providers (ISPs) and five industry trade associations sent a letter to Federal Communications Commission (FCC) Chairman Julius Genachowski urging him to ditch what has come to be known in some tech policy circles as the FCC’s own version of “deem and pass”–the infamous process that first reared its head in the context of Congress passing Obamacare earlier this year.

Following a recent, unfavorable Appeals Court decision, observers say Genachowski has been eagerly pursuing a back-door, out-of-sight pathway to achieving a long-time, personal objective: Regulation of the Internet via the institution of so-called Net Neutrality rules. Reclassifying Internet services as “telecommunications services” would enable him to do just that–though with increased public opposition to Net Neutrality having been voiced during an FCC public comment period that recently closed, and recent polling showing relatively weak support for the policy, it remains a risky option both from a public relations, and political standpoint.

For their part, the ISPs, who together with other members of a broad coalition including a prominent labor union, minority and civil rights groups, and several high-profile Democrats oppose the move, are determined to ensure that Genachowski’s preferred course of action does not go unnoticed, whether the FCC ultimately does “deem and pass,” or not.

The letter, signed by AT&T, Verizon, Time Warner Cable and the trade groups both focuses attention on what Genachowski is alleged to be planning, and seeks to debunk some of the talking points being used by supporters of the proposed reclassification. Chief among those is the argument that the current arrangement, whereby Internet services are not classified as telecommunications services, is the specific result of a policy instituted under the Bush administration, as opposed to a standard that has existed for what one tech policy expert with whom Capitol Confidential spoke called “time immemorial.” Per the letter, “the commission has never classified any kind of Internet access service (wireline, cable, wireless, powerline, dial-up or otherwise) as a … telecommunications service, nor has it ever regulated the rates, terms and conditions of that service — Internet access service has always been treated as a Title I information service.”

It is an important point to make, said that same tech policy observer, because if reclassification is ultimately branded as a simple, administrative move designed to fix a bad Bush policy, the Democratic-majority FCC is more likely to approve the change. If, however, reclassification is accurately viewed and depicted as constituting a “nuclear option,” invoked in smoke-filled backrooms, out of sight of the public, in order to placate Democratic-favorable companies and donors (including the Obama administration-cozy Google), it will be much harder–indeed potentially impossible– for the FCC to approve.

However, the difference between those two positions, and characterizations, could more than anything guarantee that the fight over reclassification could be knock-down, drag-out. “Net neutrality supporters have a lot invested here,” says the tech policy observer with whom we spoke. “They’re not prepared to go down without a fight, even if predicated on deeply questionable arguments.”