Don't worry about congressional broadband bills, it's up to the FCC and courts

31 January 2015 by Steve Blum

Towering Hoover.

Congress won’t help or hinder the FCC as it makes the most radical government intervention into the workings of the Internet since Al Gore invented it. Broadband is about to be turned into a regulated public utility, run by common carrier rules that go back to the age of the railroad robber barons. And to round it off, states will be told that municipal broadband must be allowed.

Congress critters from both sides of the aisle are looking at next month’s FCC agenda with shock and awe, waving bills that would either double down on federal broadband intervention or strangle it in the cradle.

Don’t get excited. It’s ritual, not real. Democrats who want to legislatively preempt state regulation of municipal broadband projects have zero chance of convincing republicans to go along. The GOP holds its biggest house majority since Herbert Hoover – who had a robber baron to thank for his education – moved into the white house. Which won’t help republicans strip the FCC of whatever authority it has: the current occupant of the white house is, to say the least, unlikely to agree.

At its meeting on 26 February 2015, the FCC is on track to approve common carrier – AKA title II – rules for the Internet and preemption, of some kind, of state laws that restrict muni broadband projects. The FCC leads and capitol hill follows.

Republicans will wave common carrier rules like a battle flag as they push to completely rewrite the nation’s basic telecoms law, something that won’t happen before the end of Obama’s term. If democrats find the FCC’s muni preemption insufficiently robust – a good possibility given the agency’s narrow legal scope in that regard – expect more policy papers and photo ops as they begin to build their case for a 2016 comeback.

The rest of us will work with what the FCC gives us and what the inevitable federal court challenges allow.