GOP Rep. Offers Net Neutrality Bill, Backs CRA Discharge
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Tuesday, July 17, 2018

GOP Rep. Offers Net Neutrality Bill, Backs CRA Discharge

Rep. Mike Coffman (R., Colo.) today introduced a bill that would establish a Title VIII of the Communications Act to govern broadband Internet access service (BIAS), complete with net neutrality protections against blocking, throttling, and paid prioritization. He also became the first Republican to support the discharge petition to bring Rep. Mike Doyle’s (D., Pa.) Congressional Review Act (CRA) resolution on net neutrality to the House floor for a vote.

Rep. Coffman told reporters today after an event unveiling the bill that he prefers his legislative solution to simply rolling back the December 2017 FCC restoring Internet freedom (RIF) order by passing the CRA resolution, which would essentially restore the FCC’s 2015 open Internet order and bar the FCC from adopting future rules that are substantially similar to those in the 2017 RIF order. He said he views the CRA resolution “as a mechanism to bring a bill forward.”

The Senate passed a CRA resolution in May with Republican Sens. Susan Collins (Maine), John Kennedy (La.), and Lisa Murkowski (Alaska) joining the members of the Senate Democratic caucus in voting for it (TR Daily, May 16).

Rep. Coffman also said that “the reality is that the [House] Energy and Commerce Committee deferred to the FCC” on net neutrality, and the bill introduced today is “an effort to the take back the leadership” from the regulatory agency on this issue.

During remarks at the event organized by Incompas and Engine to unveil the legislation, Rep. Coffman said that when consumers paid for an Internet connection, they “should get freedom of access, without market-distorting interventions” by BIAS providers.

The proposed 21st Century Internet Act would also bar BIAS providers from prohibiting the attachment of non-harmful devices to the network or charging fees to edge providers to avoid blocking or throttling.

The bill would establish a “duty” for BIAS providers to interconnect and exchange traffic IP (Internet protocol) on a settlement-free basis with parties that seek to do so “on a reasonably localized basis” for the exchange of “at least a reasonable minimum amount” of traffic. BIAS providers could fulfill that duty through indirect interconnection through an entity that provides settlement-free traffic exchange.

It would require public disclosure of network management practices, performance metrics (speed, latency, and packet loss), and commercial terms. Information that could be competitively sensitive, compromise network security, or “undermine the efficacy of reasonable network practices” could be withheld from public disclosure but would have to be submitted to the FCC, which would review it to decide if the redacted material qualified for one of the listed exceptions.

It would preserve BIAS providers’ ability to engage in reasonable network management.

The new Title VIII would preserve BIAS providers’ existing obligations regarding emergency communications and obligations to law enforcement, public safety, and national security authorities. It would not prohibit “reasonable efforts” by BIAS providers to address copyright infringement or other unlawful activity.

It would impose disability access obligations on BIAS providers and equipment manufacturers, to the extent that access is “readily achievable.”

It would authorize universal service support for BIAS.

The bill would authorize the FCC to “to initiate investigations, bring enforcement actions, issue declaratory rulings, conduct rulemakings, and take such other actions consistent with sections 4(i) and 403 [of the Communications Act] as are necessary to implement the requirements of this title. Nothing in this title shall alter the power of the Commission to impose forfeitures under title V,” it adds. The bill would exempt the new Title VIII from the forbearance authority granted to the FCC in the 1996 Telecommunications Act.

Supporters of the 2015 open Internet order not surprisingly welcomed the bill and Rep. Coffman’s endorsement of the CRA resolution discharge petition.

Sen. Ed Markey (D., Mass.), who introduced the Senate CRA resolution to overturn the RIF order, said, “I applaud this bipartisan momentum that is building in the House of Representative for my CRA resolution to restore net neutrality rules. I hope more Republicans will join this effort and stand on the side of American families who rely on and overwhelmingly support a free and open internet. I reiterate my call on [House] Speaker [Paul] Ryan [R., Wis.] to immediately schedule a vote on the CRA resolution so we can put net neutrality rules back on the books as soon as possible.”

Incompas Chief Executive Officer Chip Pickering said, “Congressman Coffman’s bold net neutrality action is welcome news to streamers and millennial dreamers who want to start a business online. By standing with an overwhelming 80 percent of Americans who want bipartisan net neutrality policy back on the books, Rep. Coffman’s legislation prevents blocking, throttling and paid prioritization, while making it clear interconnection is a vital piece of the streaming revolution and key to cloud competition. In signing the CRA discharge petition, Rep. Coffman joins key Republicans in the Senate who believe we must save net neutrality now and continue to defend it on all fronts.”

Computer & Communications Industry Association President and CEO Black said, “CCIA applauds the work of Congressman Coffman and his staff in trying to codify these [net neutrality] rules. Whether in the courts, on the Hill, or at the FCC, CCIA will continue fighting for net neutrality because strong, enforceable nondiscrimination rules are crucial to the tech industry and so many other businesses across the country.”

CCIA has intervened in court challenges of the December 2017 RIF order, arguing that it should be overturned.

Internet Association President and CEO Michael Beckerman said, “The internet industry commends Rep. Coffman for his thoughtful approach to preserving net neutrality protections. A majority of Americans agree that consumers should have access to the entire internet and ISPs should not be able to engage in blocking, throttling, or paid prioritization of traffic on the internet. The 21st Century Internet Act reflects these principles and is a step in the right direction.”

Ferras Vinh, open Internet counsel at the Center for Democracy & Technology, said, “We are pleased that Congressman Mike Coffman has signed onto the discharge petition that would force a vote to reinstate net neutrality protections for consumers. Although Coffman is the first Republican to sign the petition in the House, he is certainly not alone in recognizing that Americans of all parties want their internet access to be free and open, not closed and controlled by their ISPs. Support for net neutrality is astounding, with 83 percent of Americans, including 75 percent of Republicans, in favor of the Open Internet Order. Reversing the FCC’s repeal of the effective Open Internet Order through the Congressional Review Act is the fastest, surest way to reinstate these important protections for American internet users. Congressman Coffman’s signature brings us one step closer to a victory for internet users and small businesses.”

Public Knowledge Vice President Chris Lewis said, “By signing the CRA resolution discharge petition, Mr. Coffman acknowledges that most outside Washington simply want net neutrality protections in place now, and that Americans cannot wait while unelected FCC Commissioners experiment with abandoning consumers when it comes to broadband — the essential network of the 21st century.”

Mr. Lewis added, “Mr. Coffman’s own net neutrality bill is a welcomed step forward in the longer term discussion around net neutrality legislation. His bill respects all of the values of the FCC’s 2015 Order and makes a novel effort to preserve the non-net neutrality authority of the FCC to protect consumers. It is unclear if this effort on basic consumer protection will fully meet consumers’ needs and may need more refinement. Still, we respect the good faith effort that Mr. Coffman has made and are committed to working with him to improve the bill.”

Sarah Morris, director–open Internet policy at the New America Foundation’s Open Technology Institute, said, “We are thrilled to see Rep. Coffman stand up for American consumers and small businesses in the fight for a fair and open internet, and commend his support of the CRA. Rep. Coffman has been an outspoken critic of the FCC’s repeal of the rules since the Commission’s vote in December, and supporting the CRA underscores his willingness to confront tough policy issues head on.”

Faiz Shakir, national political director of the American Civil Liberties Union, said, “The dam is breaking, as it should. Rep. Coffman’s support to undo FCC Chairman Ajit Pai’s repeal of net neutrality shows that public pressure is continuing to build on this issue and cannot be ignored this November. Net neutrality is crucial for free speech and democracy online. Other House members should take heed of Coffman’s direction and stand by the overwhelming majority of their constituents, not corporate interests.”

In a statement released this morning before the bill was unveiled, Free Press Action Fund Director–government relations Sandra Fulton said that Rep. Coffman “has shown he’s listening to what internet users want and need by joining hundreds of colleagues in the House who have already signed the discharge petition, as well as the senators — Republicans, independents and Democrats alike — who voted in May to restore these strong safeguards.”

Ms. Fulton added, “By announcing that he’d sign the discharge petition and joining the push to pass the CRA this year, Representative Coffman is standing up for the strong Net Neutrality rules that his constituents demand. He stands with his voters and internet users everywhere. And he stands against incessant spin and lies from an army of phone and cable lobbyists who will do anything to stop Net Neutrality from being restored.”

She also said that the bill “has no chance of passing in this Congress. The CRA is the best and only chance legislators have to restore these crucial rights this year.”

However, there was also criticism of the legislative proposal on the grounds of what is politically possible even in the longer term.

TechFreedom President Berin Szóka said, “When Rep. Coffman announced his intention to introduce legislation back in December, everyone who wants a legislative compromise cheered. He had a golden opportunity to bridge the divide between the two sides by finally providing a concrete alternative to legislation Republicans floated in 2015. Unfortunately, his bill fails to address the most fundamental concern driving this debate: the broad powers to regulate the Internet claimed by the FCC. It’s been obvious for years that the essential quid pro quo that would make legislation possible is closing the Pandora’s Box of broad Internet regulation in exchange for codifying net neutrality protections. After all, with clear statutory authority, the FCC wouldn’t need such sweeping powers to protect net neutrality. But any bill that leaves the FCC with sweeping discretion to regulate the Internet beyond net neutrality is dead on arrival — Coffman’s included.” —Lynn Stanton, lynn.stanton@wolterskluwer.com

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