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(Note: A version of this story appeared at www.tpmcafe.com)
It's getting down to the end of this Congressional session, and any number of commentators are bemoaning the fact that telecom legislation has been stuffed, in large part, due to the opposition of those favoring Net Neutrality.
That's fine. The bills that were up for consideration this year had some good things, but tremendous flaws as well, and shouldn't have been considered in a hurry. At the same time, though, we shouldn't rush to any conclusions about how the issue will play out next year, when the Democrats take over Congress. Some people are saying the Bell companies won't want to pursue telecom legislation because they will work through the states to get what they want. Others are saying that Net Neutrality, the idea that telephone and cable companies can't make special deals to favor transmission of some content over other content, will have a great chance next year with the Democrats in charge.
The best prediction is somewhere in the middle, in part because some of the factors involved aren't yet known and in part because some of the old politics is still in play.
There will be some telecom legislation next year. It doesn't really matter whether Verizon and AT&T are pushing it, as they did this year. John Dingell (D-MI) didn't reclaim the chairmanship of the House Energy and Commerce Committee solely to investigate the Republican administration. Even without Net Neutrality, there are lots of issues to be considered, such as support for telephone service in rural areas or over-riding state law to allow local governments to build telecom networks.
What isn't yet known is who will chair the Telecommunications and Internet Subcommittee. If it's Ed Markey (D-MA), then you have a strong Bell opponent, strong Net Neutrality proponent and some momentum. But, Markey has a lot of options. He could try for the chairmanship of the full Resources Committee, and he also has seniority on the Homeland Security committee.
Depending on what Markey does, the pivotal Telecom Subcommittee could be led by Rep. Rick Boucher (D-VA). Boucher, like Markey, is a strong Net Neutrality proponent. But unlike Markey and very much like Dingell, Boucher tends to favor the Bell companies on many other issues.
The larger telecom picture is similarly complex. This year, Speaker-to-be Nancy Pelosi (D-CA) brought the House Democrats (officially at least) around to be Net Neutrality supporters, as did Sen. Harry Reid (D-NV). Their action came after MoveOn.org entered the picture and infused some energy into the debate and the private sector companies on the good side of the issue got their act together. Those factors will still be in play next year, with Pelosi and Dingell in the House, and Reid and Senate Commerce Committee Chairman Dan Inouye (D-HI) keeping up their Net Neutrality support in their chamber.
With some positive Net Neutrality leadership in place, then the question becomes, what would be in any overall telecom legislation, and there the picture gets lots more murky. Let's start with video franchising. This is the concept behind the Bells' push for a bill this year. They want to get into the cable business, providing TV programming over their fast networks, and they don't want to negotiate with 30,000 local authorities to get permission as the real cable providers had to do. So the Bells pushed the bill that gave them, and cable, a free pass nationally to enter cable business, pushing aside objections from local governments.
Now, with the telecom bill up in the air, the Bells say from time to time that they will abandon legislation in Congress and try to get statewide franchises from state legislatures. They have already had some success at it. However, the congressional approach and the state-by-state approach aren't mutually exclusive. Do the Bells really want to go slogging through 50 state legislature, and Washington, D.C., to get their franchises when they can do it on Capitol Hill? The only reason they might is that the states can grant franchises, but can't impose Net Neutrality rules because states have no jurisdiction over broadband services. Going state by state allows the Bells to cherry-pick their markets. Verizon was just awarded franchises in Montgomery and Prince George's counties, two wealthy Maryland suburbs. We'll see what they do in the rest of the state.
Remember, the Bells still have a lot of friends and a lot of votes in Congress, whether on Net Neutrality or not. There are many legislators, on the relevant committees or not, who will vote the Bell line regardless. Net Neutrality isn't a slam dunk. The key will be how much the Bells will be willing to deal. They didn't feel the need in the last session of Congress. Now, with the leadership against them, they may have a different calculus, of trying to get the best bill they can.
By now, the Bells have realized how important Net Neutrality is to a great many people, something they probably didn't count on this year. If they try in good faith to negotiate a reasonable Net Neutrality provision next year, the Bells could gain some of their goals despite themselves.