Commentary: Comparison of December 2006 to December 2010

November 23, 2010. If the Federal Communications Commission (FCC) carries through with a meeting on December 21, 2010, and adopts an item that imposes a network neutrality regulatory regime, then its 2010 and 2006 meetings will have numerous similar attributes.

The latest that the FCC has held a meeting in the month of December, at which it has adopted items, in the last decade, was December 20, 2006.

Both meetings will have adopted a major new regulatory regime -- network neutrality in 2010, and video franchising in 2006. See, order. It is FCC 06-180 in MB Docket No. 05-311.

Both meetings will have occurred late in the month of December after members of the House and Senate had left town for the holidays.

Both meetings will have instituted a regulatory regime after the Congress made diligent but unsuccessful efforts to enact legislation on the same subject. There have been network neutrality bills, amendments, and proposals in every Congress since 2006. None have been enacted into law. There was a serious effort to enact video franchising reform, as a part of a larger communications bill, in 2006. The full House, and the Senate Commerce Committee (SCC), both passed bills with a video franchising component. However, no bill was enacted into law.

If the FCC adopts a network neutrality item on December 21, then in both 2006 and 2010, the FCC will have acted in a legislative manner, to enact a regulatory regime that members of Congress attempted, but failed, to enact by legislation.

In 2006, the three FCC Republicans (Kevin Martin, Deborah Tate, and Robert McDowell) voted for the video franchising order, while the two FCC Democrats (Michael Copps and Jonathan Adelstein) vigorously dissented. In 2010, if the FCC adopts a network neutrality item, then it is highly likely that the three Democrats (Julius Genachowski, Copps, and Mignon Clyburn) will vote for it, while the two Republicans (McDowell and Meredith Baker) will vigorously dissent.

Moreover, one might expect the dissenting statements of McDowell and Baker, as well as the statements of Senators and Representatives opposed to network neutrality regulation, to read much like the dissenting statement of Adelstein in 2006.

Adelstein (at right) wrote in December of 2006 that "the FCC is a regulatory agency, not a legislative body".

He continued that "Today's Order is certain to offend many in Congress, who worked long and hard on this important issue, only to have a Commission decision rushed through with little consultation. The result will be heavy oversight after-the-fact, and a likely rejection by the courts. It will solve nothing, create much confusion, and provide little certainty or progress on our shared goal of promoting real video competition and universal broadband deployment."

Adelstein added that "Congress would not have expended effort on a major piece of legislation had its members believed it was not necessary to grant the Commission explicit authority to do what the majority now contends the Commission can do under existing law."

Moreover, in both December 2006 and December 2010, the political party holding a majority of the seats on the FCC, had just lost its majority in the House. In December 2006 the three FCC Republicans were about to face a hostile House Commerce Committee (HCC) starting in January 2007. Now, the three FCC Democrats are about to face a hostile HCC.

The main difference between adopting of the video franchising order in 2006, and the possible network neutrality item in 2010, is that in 2006 there was majority support in the Congress for video franchising reform, while in 2010, there is not majority support for network neutrality regulation.

Perhaps it should also be recalled that the FCC did not actually release its video franchising order until March of 2007. The FCC adopted a ghost order on December 20, 2006, and subsequently back dated it.