Consensus has always been a scarce commodity in the debate over network neutrality. This year, with partisan tempers flaring ahead of the midterm elections, has proven no exception.
After efforts to draft a compromise bill in the House ground to a halt on Wednesday, the focus of the debate is now shifting to the Federal Communications Commission, which could now move ahead with a plan to firm up its legal authority over Internet service providers (ISPs).
Mired in controversy, that proposal would reclassify broadband access as a so-called Title II service, a designation under communications law that would put the FCC on firmer legal footing as it looks to advance a variety of policy proposals, including many items in its national broadband plan, as well as net neutrality.
Rep. Henry Waxman (D-Calif.), the chairman of the Energy and Commerce Committee, had been working to line up bipartisan support for a compromise bill that would bar the FCC from reclassifying broadband for two years, while authorizing rules to prevent ISPs from blocking content on their networks.
But after Republican committee members said they would not support the bill, Waxman in a statement signaled support for the FCC to go it alone.
"If our efforts to find bipartisan consensus fail, the FCC should move forward under Title II," he said in announcing the breakdown of talks. "The bottom line is that we must protect the open Internet. If Congress can't act, the FCC must."
For some advocacy groups that have been pressing for firm net neutrality rules and FCC oversight, reclassification now seems the only acceptable step forward.
"We are in full agreement with Chairman Waxman that the FCC must act now to protect consumers by reinstating its authority over broadband," Gigi Sohn, president of Public Knowledge, a Washington digital-rights group that was involved in the negotiations, said in a statement. "We expect those members of Congress who argued that it was Congress' duty to set telecommunications policy would recognize the authority of the FCC in the absence of legislation."
More than half of the members of Congress had signed their names to letters to FCC Chairman Julius Genachowski earlier this year expressing opposition to the reclassification measure, urging him not to proceed without congressional approval.
Rebecca Arbogast, an analyst with Stifel Nicolaus, noted that the breakdown of talks on Capitol Hill "puts additional pressure" Genachowski to move ahead with the reclassification measure, which she sees as a worst-case scenario for phone and cable companies that had also been actively engaged in talks with Waxman and other committee members.
"We believe this is a disappointment for the Bells and cable, which would like to take Title II off the table, even if only for two years and it means making some substantive concessions to net neutrality advocates," Arbogast wrote in a research note.
FCC spokeswoman Jen Howard declined to comment on the Waxman bill or the commission's next steps.
As a practical matter, the FCC is unlikely to consider any net neutrality or reclassification measure before its Nov. 30 meeting. Earlier this month, Genachowski effectively postponed any decision on the matter when he issued a further call for comments from the public on net neutrality rules. The two windows for submitting comments and reply comments will keep the issue in limbo until after the November elections.
Waxman held out the possibility that "cooler heads may prevail after the elections," raising the possibility that legislation could still see its way to passage in the lame-duck session.
Given the choice between compromise legislation of the sort Waxman proposed and Title II regulations imposed by the FCC, cable and phone companies wouldn't hesitate to choose the former, Arbogast said. That concern could result in a late-stage push to bring House Republicans back to the table, but any such efforts seem a long shot at this point.
"We believe it will be difficult to put together a successful compromise bill during the lame-duck session, given the partisan differences and the shortage of time," Arbogast said. "But we wouldn't be surprised to see further legislative efforts made, particularly if the Bells and cable -- the biggest industry players -- believe the FCC is seriously considering moving forward under Title II."
Congress adjourns today, with lawmakers not due to reconvene until after the November election.