Ok, so I spent awhile on the phone last night with super duper secret Senate sources and super duper secret lobbyists.  The Wall Street Journal, the Washington Post, Investors Business Daily, and USA Today confirm what my sources are telling me, which is that the issue of net neutrality and the contentious fights over the Snowe-Dorgan amendment (as well as a few other amendments) could scuttle the whole bill.

Yesterday's events threw a lot of pieces into place for a hardened opposition to this bill.  While telco lobbyists were probably celebrating last night's passage of the bill through the Commerce Committee and the failure of the net neutrality amendment, today the landscape is probably making them a lot less sanguine about their prospects.  They won the Committee vote, but lost a lot of ground.

The Committee's audio servers were overloaded so I couldn't listen to the hearings.  From what I'm told, here's how it went down.  The scene in the room was surreal, with Senators debating in front of a room full of Blackberry-armed lobbyists.  There were aides behind the Senators who would pass their bosses arguments and information, with the lobbyists passing arguments and information to the aides based on the arguments Senators were making.  There were over 50 Bell lobbyists alone, including 12 employees of Verizon.  Some Senators were simply proxies for lobbyists to argue through.  Lunatic arguments were apparently in vogue; Senator Demint said that he couldn't understand why the broadband market wasn't considered competitive.  In a few years, he asserted, there would be as many broadband providers as there are search engines on the internet.  Stevens was angry and ranting, pushing aggressively to get his bill through the Committee.  He ultimately succeeded, but rubbed the Senators so raw that he now realizes that this bill cannot make it through the floor in its current shape.

In terms of the committee members, all of the Dems stood by net neutrality, including Ben Nelson, Bill Nelson, and Mark Pryor.  George Allen was sitting on the fence, visibly uncomfortable, and undecided until the last minute. John McCain left his vote with a staff by proxy, and wasn't there for most of the hearings.  Always the showboater, he came in only to offer his own amendment, and for final passage of the bill.  His own amendment was a pet issue of the Christian right, a la carte cable TV, which was destroyed by 20-2.  He also voted against net neutrality and for passage of the final bill, per his orders from the Republican establishment.  John McCain 2008 showed up, not maverick McCain.  Quel surprise.

When the vote came, we held on for an 11-11 tie, keeping all the Democrats.  I'm as critical of the Democratic Party as you'll find among liberal bloggers, but I have to acknowledge that the Democrats on the Commerce Committee (except for Inouye) were exceptional and just hung in there.  I am very much learning that having votes in there matters a great deal, and that these people are under extraordinary pressure to do the wrong thing.

John Kerry was the major surprise in the hearings.  Ted Stevens was deeply angry about the bill, and said at one point that the net neutrality provision was a poison pill that would prevent the larger telecom reform bill from passing.  "If we include net neutrality in the bill, we won't have 60 votes to pass the bill", he said, to which John Kerry responded with something along the lines of "If you don't put net neutrality in the bill, you won't have 60 votes to pass the bill either." Ouch.  This was vintage kickass Kerry, the Kerry that showed up for the debates in 2004.

Bill Nelson of Florida was another happy surprise.  He has spent the last 6 months flirting with John Ensign, and is a big fan of video franchising.  Not only did he vote correctly on net neutrality, but he prevented Stevens from holding the vote before he could make his strongly worded statement.  In his statement, he said he really wants national video franchising, he thinks that this legislation is very important, and he's worked to pass it.  But, he is now convinced that without network neutrality and without effective cable build-out provisions, he could not support it.

Now, a word on rhetoric and the Senate.  While words are often unimportant in PR battles, the Senate has a very different set of rhetoric rules.  The Senate does work via collegiality; one Senator can seriously screw up the works if he/she wants to, so there's a really strong incentive towards being polite and effusive.  The sharp language exchanged in this fight have a political impact, in other words, and will make it harder to get onto the floor.  You can't just cram things through.

Byron Dorgan, who is one of the most underappreciated and populist Senators in that body, was out there fighting with everything he had.  He went absolutely toe to toe with Stevens.  After Olympia Snowe gave a great opening speech, stating that non-discrimination principle is the basis for the internet, Ted Stevens got so angry that he went on a rant, that was just all over the map.  He insisted that net neutrality would create a two-tiered internet, confusing which policy would create a two-tiered internet.  He kept repeating 'we will not have a two-tiered internet', going on and on, making arguments for and against net neutrality.  It was very awkward for all the lobbyists in the room.  It's good that the audio servers were overloaded, because otherwise Stevens' rant would be all over the internet. Well good for Stevens, anyway.  I got this description of the Stevens screed from someone in the room:

Stevens, at one point in his rant, aimed some serious blows at the Internet companies.  He said he felt that the 5 big Internet companies (all of whom wanted a "free ride" on the Internet) had cooked up this network neutrality amendment and were pushing it through the Congress.  He said that in his opinion, more money had been spent by these 5 companies on this amendment than on any other amendment in history.

The irony of the moment was almost too much to bear.  In the audience at the mark-up were around 200 people.  I counted 8 from Internet companies.  The total of telephone company lobbyists was more like 50 or 75.  And of course, they are spending $15 million a week on advertising (update: I'm told it's closer to $15 million a month, which doesn't include lobbying costs, though no one except the telcos are really sure) to push the bill and kill network neutrality.  The Internet companies have bought almost no advertising, and they are outgunned by a factor of 10 to 1 in lobbying clout.

When Stevens was done, Dorgan just took him to the woodshed.  Dorgan said, "You're such a passionate speaker, when you're finished, I'm not always sure whether you're carrying a strong hand or a weak hand.  You've argued both sides of this case quite well." Everyone laughed.  Dorgan then broke out the Hands off the Internet television commercial which claimed that telco-sponsored legislation prevented discrimination on the internet.  Dorgan said, "Can you explain why it is that your supporters are lying on television?  They say that nondiscrimination is in your bill.  Can you show me where it's in your bill?" Dorgan hammered the point until Stevens wouldn't respond.

It was a dramatic moment.

In terms of other members, Barbara Boxer and Maria Cantwell made good speeches to the issue, and the vote was an 11-11 tie.

Final passage of the bill was the next step for the net neutrality issue.  The count moving the bill out of committee was 15-7.  We lost four people from the 11-11 tie to the final passage, Ben Nelson, Mark Pryor, Olympia Snowe, and Inouye.  Inouye gave a speech before passage, the first of the day for him.  He went through all the problems with the bill, and then said that Stevens had been more than fair with the bill, so he's going to vote for moving the bill out of Committee anyway.  This was a surprise, but I've been warned all along that Inouye really likes compromise.  He is a very old man who believes in the old-school compromise mentality, where you work in comity with the other side, and he has very good relations with Ted Stevens.  Nelson wanted to vote for the bill all along, and while Pryor voted for moving the bill out of committee, he did mention that he's not happy with the bill in its current form and may vote against it on the floor.  Snowe didn't explain why she voted for final passage, though it was probably out of respect for Ted Stevens.

Ok, to the big picture.  As you can see, this fight was contentious and polarizing.  Three controversial amendments drew close votes.  First of course is the 11-11 tie on net neutrality.  Second was a 12-10 amendment loss on build-out requirements, which makes it easier for cable companies to avoid servicing certain areas.  Third was a 12-10 loss on consumer protection, which strips state and local laws that protect consumers in wireless, telephones, and cable and vests power in the often toothless FCC.  There was also contention over the broadcast flag provisions in the bill, which will come out on the floor.  Senators love their TIVOs.

Because of all this contention, Stevens flatly said he does not have 60 votes for the bill, and it would likely not get floor time unless he has those votes lined up.  We need 41 Senators that will vote against cloture.  This seems doable.  Immediately after final passage, Ron Wyden went to the floor denouncing the bill and announcing that he has put a hold on the bill, which will make it hard for the bill to move through.  We need to get him a few more supporters that will help him, but with the fire and brimstone shown by several members of the committee (Dorgan, Kerry), as well as several high profile Senators off of it (Clinton, Obama), that's not as hard as it might look.

The telecom companies feel deeply misunderstood by this fight.  I can't tell if they really care that much about net neutrality or if they are trying to keep wiggle room so they can manage their networks.  I imagine that the executive suites are split on its importance.  Video franchising is what they are definitely after, and they are going to slug this out on a local, state, and national level.  It's really kind of ridiculous, they should probably be able to sell video services, but they have so badly misplayed their hand on net neutrality that it's looking less and less likely that a bill will get through.  From my perspective, that's a good thing.  We can push network neutrality legislation next session, which the telcos, if they really don't care about their brands, will still fight.  More to the point, the FCC isn't enforcing network neutrality now, but it could at any point do so.

I'm willing to wait this one out and not go for the compromise language pushed by the CDT, and others.  This fight has definitely seen a lot of heat and viciousness.  The telcos have been spending $15 million a week on TV ads, and have been smearing me and people on the internet as know-nothing hippiies.  Scott Cleland, for instance, took a joke I made at Yearly Kos when I was on a panel with a lot of wonks and joked I knew nothing about communications policy, and is using it to delegitimize me.  Mike McCurry has been all over the place, using top-down approved talking points on net neutrality that are simply incoherent.  Trolls are all over the MyDD comment threads, refusing to disclose whether they are paid by telecom lobbyists.

It's sad, because AT&T, for instance, is a company I'm inclined to like because of its union-friendly policies, and I admire Verizon's stance on IP issues (the company was critically important to defeating the iPod-crushing INDUCE Act, for instance).  Yes, these are big bad oligopolistic companies, but they are not monolithically bad.  Being on the other end of their bad behavior, though, has left a really nasty taste in a lot of peoples' mouths, and that's going to hurt them if they don't start wizening up.

So that's where we are.  I'm hearing rumors about Stevens trying to put together a slimmed down telecom bill, and he's clearly working hard to salvage something that can get through the floor and through a conference committee.  Unlike in the House, where the vote crushing the Markey amendment on the floor really crumpled our momentum, on balance, yesterday was a good day for our side.