Commentary

Key Critic Of Net Neutrality Won't Seek Reelection

One of the Senate's most prominent critic of net neutrality rules, Kay Bailey Hutchison (R-Texas), announced today she will not seek reelection when her term ends in 2012.

Hutchison, the ranking Republican on the Senate Commerce Committee, attempted to block neutrality rules on at least three occasions. Most recently, in 2009 she introduced an amendment to an appropriations bill that would have prevented the FCC from even considering enacting open Internet rules.

Hutchison also publicly opined against neutrality rules as recently as last week, when she complained in USA Today that the FCC's new rules would impede innovation by giving Internet access providers an incentive to seek prior governmental approval before changing traffic-management techniques. "The delay and loss of proprietary protection will surely slow down new product development," she wrote.

It's not at all clear that Hutchison is right that Internet service providers will decide to seek governmental approval before innovating; certainly the rules themselves don't require that ISPs do so. The regulations, which the FCC passed by a 3-2 vote last December, only prohibit wireline providers from engaging in unreasonable discrimination, and also ban all providers -- wired and wireless -- from blocking sites or apps. The regulations also allow for reasonable network management techniques.

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Regardless of Hutchison's predictions, her upcoming departure might tilt some sentiment in the Senate in a more pro-neutrality direction. Even so, the new regulations will almost certainly face challenges in court, given that some telecoms have vowed to litigate.

Whether the regulations will be tossed by the courts remains to be seen, but history doesn't appear to be on the FCC's side. In 2009, an appellate court ruled that the FCC lacked authority to regulate broadband traffic because broadband was classified as an information service. Though the FCC could have recategorized broadband as a telecommunications service, the agency chose not to. That decision has left the new rules vulnerable to challenge even without an anti-neutrality advocate like Hutchison opposing them.

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