Democracy & Technology Blog Confusion in the Senate — Vote for cable? Or for competition?

Senators have a lot on their minds, so its not surprising when some of the details get overlooked or confused.
Here’s the choice Senator Ron Wyden faces: He can protect the status quo, in which the cable company is still the dominant provider of video and broadband services in many markets and it isn’t illegal for the cable company to block or degrade access to the Internet. Or, he can vote for a Senate Commerce Committee bill that would remove local barriers to the telephone companies — who are ready to invest billions in competitive video and broadband services — and would make it illegal for any provider to block or degrade Internet access. Sounds like a no-brainer. But Wyden vowed again Friday to block telecom reform unless it is amended to prohibit extra fees for priority service.

The obvious choice may not be evident to some Senators because the proponents of net neutrality regulation have sought to present their proposal as the status quo and not some risky scheme. As a result, there seems to be some confusion about what present law provides.
Is net neutrality regulation ‘tried and true’ or a ‘risky scheme?’
In 1998 and again in 2000, the FCC said that common carrier regulation applied to DSL services offered by the telephone companies, but not to the cable modem services offered by cable operators. Common carriage and net neutrality regulation are the same thing. The Court of Appeals for the 9th Circuit disagreed with the FCC. But the Supreme Court sided with the Commission by a vote of 6 to 3 in National Cable & Telecommunications Association v. Brand X Internet Services. The FCC subsequently deregulated DSL. Again, Senators are busy people. They need to focus on the big picture.
In his remarks Friday, Wyden argued net neutrality did appply to cable modems and did not prevent the cable companies from investing more than $100 billion in broadband networks over the last decade.

I am often asked now: If we have net neutrality, does that mean we are not going to have sophisticated communications networks built in my neighborhood? … For years cable companies have been digging up the streets in neighborhoods across the land to build more sophisticated networks, even though net neutrality protections were in place. For all these years, when we have said we were not going to allow discrimination on the Internet, we have had the cable companies out there digging up the streets putting in these systems. So it is not as if we don’t have some evidence of what you can do when the Internet is free of discrimination.

Nice try. Cable operators invested $100 billion because they were not subject to net neutrality. The telephone companies, who were subject to common carrier regulation, invested a fraction of that amount.
See:Internet Neutrality,” Congressional Record, Jul. 21, 2006 (p. S8100-01).

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.