Net Neutrality: Who’s the Boss?

The Internet traffic management plan from Google and Verizon may be just a new proposal at this point, but in the short time since its introduction, it’s proven to be nothing if not controversial.

Though the plan does include consumer protections against discrimination by Internet service providers, those protections are afforded only on Internet service delivered over wires. For wireless broadband, all bets are essentially off, and that has many people worried.

“We welcome all efforts to promote openness on the wireline Internet but believe that any satisfactory agreement must also include protection for wireless Internet users to access websites and applications of their choice,” said Markham Erickson, executive director of the Open Internet Coalition, for example.

The fact remains, however, that the Google-Verizon plan is what’s currently on the table. Controversial as it is, the questions of what will happen next and how opponents might intervene to upend it are the subject of at least as much debate.

‘Nobody Is in Charge’

An obvious first question in projecting the way forward is, who’s in charge at this point?

“That depends on which lawyer you ask,” noted Jerry Ellig, senior research fellow at the Mercatus Center at George Mason University and former deputy director of the FTC’s office of policy planning.

Indeed, “nobody is in charge at this point, and that is creating a problem,” Rob Enderle, president and principal analyst with the Enderle Group, told the E-Commerce Times.

“The expectation among Open Internet Coalition members is that action at the FCC is the best way to progress forward this year,” Eric London, a spokesperson for the group, told the E-Commerce Times.

There are many possibilities, however, and “the FCC’s authority in this space is in dispute, making it hard to implement consistent rules and enforce them,” Enderle pointed out.

A Precursor to Legislation

“The Google-Verizon agreement was associated with a bigger set of talks that the FCC chairman was hosting to try to come to some sort of an agreement on what to propose to Congress as legislation,” the Mercatus Center’s Ellig told the E-Commerce Times. “So, the spirit of this is, ‘let’s try to get the major players to agree on something in the way of legislation so that if it moves through Congress, they’ll know that one of the 800-pound gorillas won’t come pounding on the door.’

“Not being a lawyer, I don’t know if the FCC on its own could find some way to thread the needle to do this,” Ellig added.

As long as the FCC says that broadband is an information service, it doesn’t have the authority to handle Net neutrality rules, he noted.

It could, however, decide to reclassify broadband as something else, which could potentially mean it does have authority over the area. Of course, “the other big uncertainty is that if it does reclassify broadband, it will lead to other legal challenges,” Ellig pointed out.

“Anything the FCC might do on its own,” in fact, “is likely to be subject to legal challenge by somebody,” he added. “That’s why it’s difficult to say with much certainty, ‘here’s what will happen.'”

‘An Iffy Topic in an Election Year’

In any case, “the first step is to establish who has the authority to act right now,” Enderle said. “Without that, the FCC is thrashing.”

Google and Verizon, meanwhile, are no doubt already at work trying to convince others to support their proposal.

“Other parties involved in this thing may either agree or disagree with it,” Ellig noted. “Depending on how many agree, that would determine whether the folks in Congress think it is worth taking up” and writing a bill to formalize it.

Of course, “this is an iffy topic in an election year for them,” Enderle pointed out. “Even if the president drove the effort, there is some doubt it would get as much attention as it needs.”

In fact, Google and Verizon’s plan “showed a distinct lack of awareness for both the overt power large corporations have in this post-crash world and the reality of an election year,” Enderle added. “It seemed to do more to polarize the democratic Congress against the effort, which may actually result in progress — but not in Verizon or Google’s direction.”

Then, too, there’s the fact that “99 percent or more of all bills don’t make it into law,” Ellig warned. “It’s not hard to write a bill and submit it.”

‘Two Groups Might Be Opposed’

In the meantime, there’s no doubt opponents to the plan will try to sway it in a direction they prefer.

“There are two very different groups who might be opposed,” Ellig noted — “those who see no need for any Net neutrality rules, and those who think this doesn’t go far enough.”

Still, “it sure looks like Congress would prefer to see some kind of consensus before acting,” he added.

So, for either opposing party, the most likely course of action would be “to make a lot of noise and create the appearance that many don’t like it,” he predicted.

Also conceivable, however, is that “some of the main movers in Congress could say, ‘gee, two of the big players have already compromised and it looks pretty good to us, so let’s write a bill and introduce it,” Ellig added.

‘All Bets Are Off’

If anything’s clear so far, it’s that “the balance of protecting ‘freedoms’ and providing an incentive for development is often tough,” Washington technology attorney Raymond Van Dyke told the E-Commerce Times.

“Some Net neutrality groups are quite vocal, and Congress may get involved,” he predicted. “Then the lobbying kicks in, and all bets are off.”