While Alan Grayson hides behind a belief that statutory law governing net neutrality would be safer from rollback than a change in classification at the FCC, John Kerry takes the realistic view:

A congressional stalemate has made passage of a net-neutrality bill unlikely for the time being, according to a statement from Sen. John Kerry (D-Mass.) on Thursday. Kerry said regulation by the Federal Communications Commission is now the best option for government oversight of broadband Internet access.

“As we work to find a path forward for governing broadband, Congressional stalemate is making a legislative solution look increasingly unlikely in the near term,” Kerry said. “As a result, Chairman Genachowski is now moving forward along a regulatory path. While this is an imperfect solution, it’s his only real option to maintain the proper role of government oversight in communications.”

Not only is reclassification the only game in town, it’s well within the statutory authority of the FCC, granted by the 1996 Telecommunications Act and a 2005 Supreme Court ruling. Both other branches of government have basically given the executive branch the ability to take care of this.

According to the Krauthammer, I’m supposed to be furious at the power grab of the executive branch and their rewriting of rules instead of allowing the legislative process to work. Wait, I’m supposed to be furious at the Obama Administration doing this, not any Republican Administration. And for the record, I am furious. But the blame lies with the unrelenting gridlock of the Senate, which disallows a majority of lawmakers to work their will. And in a time of gridlock, issues and challenges don’t disappear. They get worse, and unless somebody does something about them, they turn into catastrophes. Google and Verizon may say they aren’t undermining the Internet, but the New York Times stands by its story. Clearly, corporations will divy up the Web in the event of inaction. And that’s why the FCC, which has been granted all the authority they need by the legislative and judicial branches, must act.

I also want to wrestle with Bob Sullivan’s article, which claims that ISPs prioritize content today to stop DOS attacks and spambots, and that we need to strike a balance between full neutrality and a two-tiered Internet:

“Net neutrality,” as described by its extreme supporters, does not exist today, and that’s a good thing. Internet service providers “de-prioritize” certain kinds of traffic already, such as spam or denial of service attacks. And in an even more subtle way, network neutrality cannot exist in the Internet’s current architecture. By its nature, the system itself is kinder to some kinds of communication over others. The TCP protocol used to move packet traffic around the Web favors latency-tolerant applications, such as e-mail, over real-time communications, like video chat. That’s just the way the technology works [...]

I get the slippery slope argument. I get fears that allowing such charges could lead us down the road to a two-tiered Internet, with first-class service for a tiny few and coach class for the rest. I understand even more the corporations involved here, if they win the right to charge in tiers, will overpromise and under-deliver. Instead of investing in new, better service, they will just take the money and downgrade most service. And then there’s the biggest fear of all: that cable companies will turn the Web into, well, cable. It is possible that Internet-delivered television running over a first-class Internet pipe could lead to marginalization of the rest of the Web.

That’s why I’m afraid we are all taking up the wrong fight. The fight should involve the real problem, rather than the buzzwords. It should involve guaranteed minimum service levels, and a real government resource for complaints. (The FCC is awful at directly helping consumers — just read this column.) It should quickly investigate and fine misbehavior by ISPs, such as throttling service or misleading consumers about available bandwidth. It should protect small-time Internet users while allowing early adopters and early innovators the choice to spend more and get more. Is a proclamation of absolute net neutrality the best road to a fair Internet? I doubt it.

I’m not fully equipped to get into a deep-level argument on this (though he’s getting hammered in the comments). But I do know this. There is an agency set up to do the public’s business in this arena, and it’s the Federal Communications Commission. Because of the way the Bush Administration classified broadband services, they made it impossible for the FCC to act. Encouraging innovation and establishing guaranteed minimum service and going after ISPs while allowing them to filter out things that degrade service all sounds great, but it’s also all out of the reach of the FCC right now absent reclassification. So Sullivan needs to pick a side.

UPDATE: The other part of this Sullivan never addresses is that current Internet capacity in the United States is pathetic. The solution to slow load times isn’t picking and choosing between what content to allow, it’s building a fatter pipe, which is eminently possible (look at most other industrialized nations). The monopolistic telecom industry is intentionally sitting on slow pipes so they can put up toll gates and extract rents.