Republicans Sound Warning Against December Vote on Net Neutrality Rules

"Doing [net neutrality] in December would be tantamount to an act of war” against House Republicans, Communications Subcommittee member Lee Terry, R-Neb., said in an interview Friday. Rep. Fred Upton, R-Mich., predicted Genachowski “will soon be a familiar face on Capitol Hill” as the Commerce Committee ramps up oversight activity next year. The presumed frontrunner for chairman, Upton hopes “the only turkey cooking next week will be in our kitchens on Thanksgiving and not at the FCC” Rather than “poison the well,” the commission should “stand down” and work with Republicans next year, he said in a written statement.

Circulating a net neutrality order for a December vote “is a mistake,” said House Commerce Committee Ranking Member Joe Barton, R-Texas, and 18 other committee Republicans, in a letter sent late Friday to Genachowski. “We have much we can do together on matters such as spectrum and universal service reform that will have a significant positive impact on the economy,” the Republicans said. “Reigniting the network neutrality debate will only distract us from that work and further jeopardize investment, innovation, and jobs."

A vote soon on net neutrality won some congressional backing and was defended by an FCC official late Friday. Rep. Ed Markey, D-Mass., hopes the FCC acts this year “to ensure that the Internet retains the features of openness and non-discrimination that have made it the most successful communications and commercial medium in history,” he said. “Preservation of a free and open Internet is essential to protect consumers, spur investment, foster innovation and promote the free flow of ideas.” “Net Neutrality is about preventing anyone from regulating the Internet,” a senior commission official said in response to criticism about a possible vote. “There are some cable and phone companies out there that want to decide which apps you should get on your phone, which Internet sites you should look at, and what online videos you can download,” the official added. “That’s regulating the Internet -- and that’s what the FCC is trying to stop.”

Genachowski may be contemplating a compromise of sorts on net neutrality, under which he would ask commissioners to vote on an order adopting net neutrality rules, but under Title I of the Communications Act, industry and FCC officials said Friday. They said that would side step for the time being the huge fight over reclassifying broadband as a Title II service. The plan likely wouldn’t please anyone completely, and probably wouldn’t do much to mitigate Republican opposition, officials said.

"We believe FCC Chairman Genachowski is leaning toward scheduling a vote to adopt net neutrality rules using Title I authority at the FCC’s December 15 open meeting,” MF Global analyst Paul Gallant wrote investors Friday. “We do not believe this decision has been finalized, but right now it appears to be the most likely scenario.” Several public interest group officials said that compromise plan is unlikely to win their support.

"This approach would be ill-advised, and is likely to displease everyone,” said Andrew Schwartzman, senior vice president of the Media Access Project. “Unlike a straight reclassification, which would yield one relatively clean lawsuit, this half-baked model will invite legal challenge of every commission action from here on out."

Reclassification would create a “firm foundation” for net neutrality rules, said Public Knowledge Legal Director Harold Feld. “The reclassification/authority question is not going to go away,” he said. “It touches too many areas. It impacts [Universal Service Fund], public safety, cybersecurity, and even data roaming, which a number of opponents of Title II classification very much want. If the FCC refuses to do it now, it will need to confront the same question of authority the next month when it does USF, or the next month when it does data roaming. Regardless of what the FCC does here, it will eventually need to decide whether to reclassify or become irrelevant.”

Free State Foundation President Randolph May said the FCC should hold off on any vote on net neutrality. “I don’t think Genachowski should move ahead … without working with Congress to get explicit authority to do so,” May said. “There is just no urgency for him to act since there is no market failure, and whatever legal basis he utilizes will leave the agency on shaky ground. But if he does decide to proceed, he certainly should not propose any regulation beyond that proposed by the Waxman draft, which itself went too far with its open-ended non-discrimination provision. And it makes no sense at all to go beyond the Waxman draft with respect to wireless."

Other Republican members of the House also cautioned Genachowski against moving forward on net neutrality rules. “Ramming through Internet regulations would ignore the will of a bipartisan majority of Congress and the American public,” said Communications Subcommittee Ranking Member Cliff Stearns, R-Fla. “It would further impede economic growth and job creation. Furthermore, since the December meeting agenda will be released next week when Congress is in recess, it appears that Chairman Genachowski is trying to slip it under the radar and hope no one notices."

"The FCC should not be trying to institute a government takeover of the one industry that is currently expanding and creating jobs when we currently have close to 10 percent of Americans unemployed,” said Rep. John Shimkus, R-Ill. “We need to incentivize the tech sector to continue to expand and bring both high speed Internet and much needed jobs to America. The FCC’s attempt to take over the Internet will hinder both of these things."

Terry gets along with Genachowski, but thinks “he’s gotten a little ahead of himself,” Terry said. “He can have a good relationship with our side of the aisle … but if he wants to bring this up in December before Republicans take control of the House in January, that’s going to be interpreted as a very aggressive move, and it will bring a lot of animosity with it that the FCC and Julius doesn’t need.” Rep. Mike Doyle, D-Pa., said he looks “forward to hearing Chairman Genachowski’s plans to protect the Internet -- and to working with him to ensure that the Internet is open to all voices."

Genachowski apparently had second thoughts on seeking a net neutrality vote after agency officials spoke Thursday with top Republican aides on the House Commerce Committee, said an industry executive who heard about the conversation. During a phone call that’s believed to have included GOP senior committee counsel Neil Fried, an FCC official was told about the intense scrutiny on Capitol Hill he'd face if he pushed ahead with a vote, the executive said. The specter of FCC oversight is “not a toothless threat,” said the executive, who doesn’t have a position on net neutrality: The Commerce Committee has “the full support” of House leadership “if they want to kind of go nuclear on that."

That phone call apparently sparked Genachowski’s decision to delay the December commission meeting by a week, the executive said. Ironically, Dec. 15 would have been an ideal time from a strategy perspective to hold the meeting, because Genachowski could circulate the net neutrality order Wednesday afternoon or evening, as eighth-floor staffers were leaving the office for the Thanksgiving holiday Thursday, industry executives said. That would have left Genachowski ample time before word started leaking out about the draft order to publicly make his case for it or to otherwise shore up support, they said.

Meanwhile, Genachowski’s senior aides were set to have gathered at the FCC Saturday morning for a strategy session to discuss how to proceed on net neutrality, said an industry executive. Over the summer, Genachowski called for an unusual Saturday meeting of executives on both sides of the net neutrality debate, as they tried to hammer out a compromise that ultimately failed.

Speculation continues that Genachowski may not stick around for his full term at the FCC and could leave next year. “Our checks in Washington suggest that, given his interest in pursuing other opportunities, the Chairman may consider leaving his position as FCC Chairman at some time in 2011,” Credit Suisse analysts wrote investors Friday. “Several members of Genachowski’s staff have recently left the FCC, which may signal that the Chairman is also looking for an exit strategy.”