Net neutrality rules and the FCC's huge mistake

All together now: Hip, hip, hooray! Hip, hip, hooray! Hip, hip, hooray!

What are we all so happy about? Could it be the defeat of the Senate effort to strike down the Federal Communications Commission's "net neutrality" rules with J.Res.6 which was snappily titled "A joint resolution disapproving the rule submitted by the Federal Communications Commission with respect to regulating the Internet and broadband industry practices"?

Sponsored by Sen. Kay Bailey Hutchison (R-Texas), ranking member of the Commerce, Science and Transportation Committee, the final vote on the joint resolution was completely along partisan lines with 50 democrats and two independents voting against the resolution and 46 republicans voting for it (one senator from each side of the house missed the vote).

BACKGROUND: Senate votes against measure to kill net neutrality rules

My colleague Tony somewhat cynically suggested: "Sure the vote was close ... because then when the issue comes up again next year and both sides are trying to fill the campaign coffers for the 2012 election, the telecom industry lobbyists will lavish far more money on everyone in an attempt to sway the vote!"

Anyway, much of the Senate's three-ring circus was essentially symbolic as the FCC's rules ultimately wouldn't have been struck down anyway; President Obama had already committed to vetoing the resolution had it passed the Senate.

So, the FCC's net neutrality rules are now safe, aren't they? Well, not quite because that's not the end of the politicking folks, oh no, not by a long shot. This particular hot potato will come up for another round of disapprovals next year ... that's assuming the rules withstand the legal challenges currently grinding their way through federal court.

Yes, just to make things even more complicated, there are a number of court cases challenging the FCC's rules underway: Verizon and MetroPCS are both challenging the entire set of rules, while the fine folks at Free Press, who are some of the biggest supporters of net neutrality, want to see the neutrality rules governing wireless networks seriously strengthened (the FCC's rules essentially leave the wireless carriers to do as they please).

What is so tricky about the whole net neutrality issue is that there's no recognized middle ground. Either you believe that the unchained forces of commerce will attempt to gouge every cent possible from Internet users by controlling and charging for Internet traffic and, in so doing, create an essentially Balkanized and censored environment that will stifle innovation, concentrate financial power in the hands of too few players and undermine the Internet as we know it, or you believe the free market will self-regulate and competition will flourish in an unregulated environment.

I believe the latter is completely naïve and should you disagree just consider what a lack of regulatory oversight in the banking industry has done for our economy. Sure, leaving the market to its own devices would be terrific if the Internet playing field was level and there were lots of service providers to create a truly competitive environment. And it would be terrific if the greater good of our culture was a consideration at all. But none of those are actually on the table.

As for the former view supporting regulating, sure, there's a huge risk of rampant capitalism doing huge commercial and social damage, but you have to consider how much regulation can be effected without creating a marketplace that no one wants to service.

I think that the problem really is that the FCC's current rules don't go far enough simply for political reasons. Had Julius Genachowski and company produced some really over-reaching rules out of the gate then there would have been a middle ground to find and that would have looked a lot like what is currently being fought over.

As it is, with the rules as they are, there's not much in the way of middle ground between what either side of the house wants, and if no middle ground exists then there can be no horse trading which could have got us the rules we have. The FCC may have made a huge strategic mistake.

Gibbs wishes he made the rules in Ventura, Calif. Your disapproval to backspin@gibbs.com.

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