Don't pay too much attention to what people say about the Federal Communications Commission's ability to push through the National Broadband Plan. Pay attention only to what the government ends up doing. In the interim, consider the project to be going ahead -- but more tentatively since it suffered a key legal setback on April 6.
The FCC is not in denial. It's are in the process of thinking things through. The New York Times yesterday covered a Senate hearing during which FCC Chairman Julius Genachowski did not commit to reclassifying broadband under Title II of the Communications Act, a step many are advocating. He said the FCC believes it still has the juice-though he certainly didn't put it this way-to drive the creation of the network despite the loss to Comcast. That decision, at the D.C. Appeals Court, was in a case in which the FCC had found that the cable operator had broken its rules in its throttling of peer-to-peer company BitTorrent several years ago.
The loss pulled the rug from under the FCC, undermining its ability to tell broadband providers what to do. It remains uncertain, though, whether the rug has been completely pulled out, or if the ISPs still have their feet firmly enough on the rug's edges to go flying if the FCC gives it a good pull.
There are two reasons that prudent people should just wait until the FCC acts.
The first: It simply takes a while for legal decisions to sort themselves out. Precisely how a slapdown in one venue on a particular topic will affect another topic in another area isn't immediately apparent. The paint has to dry before you have a good idea of what the room looks like.
The second reason is that what the various parties do, wholly above the strict legalistic possibilities, depends on a number of independent issues. The project is big-in terms of both expense and the millions of people who will be affected-and thus all sides (Democratic and Republican politicians, ISPs, the FCC, the White House, etc.) will think the new ground rules through carefully before playing their hands. They will decide whether-or how hard-to push based on many things besides the legalities, even when they become apparent.
For instance, even if the FCC feels it is on solid ground, it much consider whether the ISPs will litigate. How expensive and time-consuming would that be? What are the chances of winning? The considerations are just as complex on the ISPs' side: How will it play on Main Street to sue to stop the creation of something just about everybody likes? Could such an infrastructure ultimately be in their best interest?
These questions, and similar ones facing the politicians, are not simply legalistic. The rights of the commission under the law, as interpreted by the Second Circuit, is but one element of a much larger question: What does the ruling mean in the real world? The skirmishing, delivery of implicit warnings through the media and other positioning is well under way.
The best move for Genachowski right now is to hedge:
Several times, Mr. Genachowski ducked direct questions as to whether the FCC was considering moving the regulatory designation of Internet service from one category to the other.
"I have instructed our lawyers to take the recent decision seriously," he said, "and evaluate what our options are."
He clearly isn't yet sure of what to do. He is kicking the can down the road and, in addition to staff attorneys, certainly is gathering input from policy and political folks at the FCC as well as the White House.
An approach that is getting less play than reclassification is simply adding to existing law. That's what West Virginia Democrat Jay Rockefeller seems to be suggesting, as quoted by Computerworld:
Comcast and other broadband providers want to take the FCC's authority away, Rockefeller added. "In the long term, if there is a need to rewrite the law to provide consumers and the FCC and industry with a new framework, I as chairman will take that task on."
Rockefeller was referring to the Senate Commerce, Science and Transportation Committee.
As I wrote last week, the cleanest and most direct way for broadband plan proponents to deal with the new landscape is simply to give the FCC the authority the courts found that it lacks. It's far less certain whether this is the most politically expedient approach, however, especially in a landscape in which the Republicans are trying to build an electoral case that the Democrats are overreaching. Changing the law in reaction to a legal setback could play into that narrative quite nicely. Democrats have backed off important issues for far less.