Published at The Hill — Congress Blog, available here.

October 28, 2010, 2:53 pm

A post-election job for Congress: Resolve the net neutrality fight

By Stephen Pociask

At times, the political battle over net neutrality regulation recalls the tragic mythological tale of Sisyphus, who could never quite push that rock all the way to the top of the hill. When Congress shut down for re-election campaigning earlier this month rather than consider a neutrality compromise from Rep. Henry Waxman (D-Calif.), it appeared at first blush that a resolution had again slipped away. But a closer look suggests the key players are edging toward an agreement that would preserve an open Internet for consumers while also enabling continuing business investment that would expand Internet capabilities and create jobs to help the economy.

The Waxman proposal, which considered the viewpoints of public interest groups and the private businesses that operate the Internet and provide its content, struck a careful balance. For consumers, the measure would have given the power of law to the widely held belief that Internet users should be able to access any legal website of their choice. It also would have barred network operators from harmful discrimination that would reduce the quality of users Internet experience. While there is little evidence so far of such harmful acts, enshrining these practices into law and giving the FCC clear authority to enforce the new rules would provide important certainty for consumers and businesses alike.

Establishing certainty, by itself, would be positive because knowing what the rules are makes it easier for businesses to plan and invest. But a recent court ruling that limits FCC authority over the Internet and the Commission’s subsequent response, have had the opposite effect. Following the ruling, the FCC crafted a proposal to regulate the Internet according to an outdated set of Title II rules drafted in the 1930s for the old Ma Bell monopoly and its copper telephone technology. That idea has drawn opposition from a majority of Congress. Legislators of both parties worry that Title II regulation, which would limit new service options for consumers and could involve government in routine business decisions, would crimp investment spending and rob the economy of quality jobs in the process.

One recent study by the Advanced Communications Policy & Law Institute at New York Law School estimates that just a 10 percent cut in investment because of excessive regulation would cost about 500,000 jobs between 2010 and 2015 a risk to avoid at a time that more than 15 million unemployed Americans are desperately looking for work but can’t find it.

By limiting the scope of any new regulation, the Waxman bill (or something like it) would spare the economy from that type of disruption. What’s more, a review of public comments makes clear that Rep. Waxman is on reasonable middle ground that would be generally acceptable to all but a few ideological purists. Original advocates of net neutrality such as Google have conceded ground by agreeing that net operators need freedom to manage their networks for efficiency, safety and reliability. Network operators such as AT&T and Verizon now say they can accept some limits on their business options in order to protect consumers. Both sides seem to agree that a resolution that allows them to focus on serving their customers is preferable to continued fighting.

With members of Congress eager to leave town for re-election campaigns, there wasn’t sufficient time to debate and vote on net neutrality legislation now. And, as might be expected in Washington’s highly-charged political environment, many members want to see how the new Congress lines up before finalizing key policies.

But a workable framework is in place, one that will protect consumers Internet choices, generate innovations and new consumer services, and encourage business investments for a stronger economy. When Congress returns to work in November, it needs to distinguish itself from Sisyphus and finish the job with legislation that gives clear guidance to the FCC and will keep the door open for the development of new online services to meet consumer needs.

Stephen Pociask is president of the American Consumer Institute Center for Citizen Research, a 501c3 educational and research institute.