On Wednesday, Sen. Jim DeMint of South Carolina and six other GOP senators introduced legislation (PDF) that would dramatically limit the Federal Communications Commission's ability to regulate broadband providers.
"The FCC's rush to takeover the Internet is just the latest example of the need for fundamental reform to protect consumers," DeMint said in a statement. Without this legislation, DeMint said, the FCC will "impose unnecessary, antiquated regulations on the Internet."
The new bill--called the Freedom for Consumer Choice Act, or FCC Act--doesn't eliminate the FCC's power over broadband providers. But that power would be narrowed in scope, and come to resemble the antitrust enforcement power of the Department of Justice.
One section, for instance, lets the FCC define "unfair methods of competition" and levy "requirements" on the industry, but only if marketplace competition is inadequate.
DeMint's bill is a response to a federal appeals court that unanimously ruled earlier this year that the FCC's attempt to slap Net neutrality regulations on Internet providers--in a case that grew out of Comcast throttling BitTorrent transfers--was not authorized by Congress. The opinion called the FCC's claims "flatly inconsistent" with the law.
Soon after the appeals court's ruling, the FCC announced plans to reclassify broadband service as a telecommunications service, effectively importing a subset of the regulations designed for the analog phone system to the Internet.
Supporters of Net neutrality say new Internet regulations or laws are necessary to prevent broadband providers from restricting content or prioritizing one type of traffic over another. Broadband providers and many conservative and free-market groups, on the other hand, say some of the proposed regulations would choke off new innovations and could even require awarding e-mail spam and telemedicine identical priorities.
A broadband industry representative, who did not want to be identified by name, said DeMint's measure turns the current debate upside-down. Currently, that person said, Net neutrality advocates can invent a "parade of horribles that could happen if the Internet was left unregulated." But under the DeMint bill, the FCC and Net neutrality advocates "would need to prove a tangible consumer benefit in order to impose new regulation."
New regulation would only be permitted if the FCC can demonstrate that "marketplace competition is not sufficient to adequately protect consumer welfare" and the lack of competition "causes or is likely to cause substantial injury to consumers." (If the FCC decides to impose regulations without sufficient proof, look for broadband providers to file a lawsuit.)
Art Brodsky of Public Knowledge, one of the more prominent supporters of Net neutrality regulations, told CNET that: "No one wants to regulate the Internet. They start from that premise, which is mistaken." The bill takes a wrong turn, Brodsky said, by "duplicating the jurisdiction and purpose" of the Department of Justice and the Federal Trade Commission, which share antitrust authority.
A Republican Senate source who's familiar with the thinking of the bill's supporters said the intent is to go further than merely curbing Net neutrality regulations. The DeMint bill is in response to the FCC's announcement of reclassification--it's "meant to impose a whole new framework on the FCC so that they can't impose any new rules unless they find that a market failure led to ongoing consumer harm, and not just in the Net neutrality context, but in any rule making," the source said.
Kyle McSlarrow, president of the cable lobby group NCTA, said in e-mail to CNET that his group commends DeMint. "This legislation represents a valuable addition to the debate over how best to modernize the regulatory framework governing broadband services and how best to continue policies that promote growth of broadband and the development of innovative Internet services," McSlarrow said.
But theory doesn't always mesh with political practice. More than 70 House Democrats sent a letter to FCC Chairman Julius Genachowski instructing him to abandon his Net neutrality plans. A majority of Congress now opposes Genachowski's proposals.
Other sponsors of the FCC Act, all Republicans, are Orrin Hatch of Utah; John Ensign of Nevada; John Thune of South Dakota; Tom Coburn of Oklahoma); John Cornyn of Texas; and Jeff Sessions of Alabama.
Last updated at 10:30 p.m. PT