TR Daily House Hearing Puts Partisan Net Neutrality Fissures on Display
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Tuesday, March 12, 2019

House Hearing Puts Partisan Net Neutrality Fissures on Display

Democrats and Republicans sparred today during a House legislative hearing on over which party is at fault in not seeking a bipartisan approach to addressing the long-running net neutrality policy debate.

The legislative hearing today before the House communications and technology subcommittee was convened to consider Democratic legislation that would overturn the 2017 restoring Internet freedom (RIF) order adopted by a Republican-controlled FCC and reinstate the 2015 open Internet order adopted by a Democratic-majority FCC. The 2015 order classified broadband Internet access service (BIAS) as a Communications Act Title II telecommunications service, while forbearing from many provisions of Title II; classified mobile broadband as a commercial mobile radio service; imposed “bright-line” rules prohibiting blocking, throttling, and paid prioritization, as well as a transparency rule; and adopted an Internet general conduct standard.

In his opening statement, subcommittee Chairman Mike Doyle (D., Pa.) said that by codifying the 2015 order into law, the proposed Saving the Internet Act introduced last week (TR Daily, March 6) would make the forbearance from most provisions of Title II permanent. Among the concerns some critics had expressed regarding the 2015 order was that a future FCC could rescind the forbearance.

However, some critics have objected to Title II classification more broadly, arguing that common carrier regulation appropriate for 19th century monopoly utilities is inappropriate for 21st century Internet service providers (ISPs).

Referencing the Title II prohibition on unjust and unreasonable terms and conditions, Chairman Doyle said that “opponents of the bill need to explain to their constituents which unjust and unreasonable practices they want ISPs to be able to engage in.”

Chairman Doyle added, “I encourage my colleagues on the other side of aisle to seriously consider the bill.” He also tried to head off any efforts to discuss three net neutrality bills Republicans have introduced (TR Daily, Feb. 7), saying, “I remind my colleagues that this is the bill that is before the subcommittee and this is the bill we’re discussing.”

Subcommittee ranking minority member Bob Latta (R., Ohio), a sponsor of one of the three Republican net neutrality bills, said, “I’m confused as to why we need to spend another hearing discussing net neutrality less than a month after another hearing on the subject.” He said that “there are lots of ways to protect the open Internet,” including the bills he, full Energy and Commerce Committee ranking member Greg Walden (R., Ore.), and Rep. Cathy McMorris Rodgers (R., Wash.) have introduced.

Rep. Latta rejected the idea that “only Title II is real net neutrality” and argued that a bill that reinstates Title II classification of BIAS “has no chance of passing the Senate or being signed into law.”

Full committee Chairman Frank Pallone Jr. (D., N.J.) said, “We must act swiftly. There is no time for delay. Without net neutrality, we’re already seeing the slow march of anti-consumer behavior. ISPs are charging internet users more for using their smart phone’s internet connection on another device. In other instances, they are charging consumers more for watching high definition videos. This is not what a free and open internet looks like.”

Committee ranking member Walden said, “Unfortunately, my friends on the other side have refused to work with us on a bipartisan solution.” He added, “Title II is not necessary to preserve a free and open internet. We can permanently address blocking, throttling, and paid prioritization without the harmful, heavy-handed approach of Title II.”

Rep. Walden said, “I’d also like to note that the Internet seems to be working today, despite all the hyperbolic rhetoric to the contrary last year.”

Rep. Walden also suggested that Congress should reconsider the safe harbor in section 230 of the Communications Decency Act, which was part of the Telecommunications Act of 1996, and which shields website operators, e-mail providers, ISPs, and other Internet intermediaries from liability for content they host or transmit for third parties.

“Online platforms are now major venues for communication and commerce, and not just in the United States but around the world. But Section 230 was also supposed to be about responsibility. With a liability limitation in their backpocket, we increasingly see the tech giants wield their power at the wrong targets,” Rep. Walden said.

“When will this subcommittee seriously consider the role of the edge providers either as common carriers in the Internet age, or how they are the ones with business models that use our data for their profits? If you’re going to ‘protect’ consumers online, should those online protections apply to the whole internet ecosystem?” he added.

Rep. Walden asked Chairman Doyle for a commitment to hold a hearing with FCC Commissioners as witnesses to testify about the effects of the proposed legislation before marking it up.

Chairman Doyle said, “I’ll make sure to let you know when we invite them.” Rep. Walden said that wasn’t precisely what he had asked for.

Responding to the suggestions that the new Democratic majority was not taking a bipartisan approach to legislation, Chairman Doyle said, “I must have missed the phone call when you said let’s sit down and talk about net neutrality. … What we got was three bills being dropped before we knew anything about them.”

Rep. Walden, who is the former chairman of the full committee, said, “For three years I’ve had an open door” on this issue.

Chairman Doyle responded, “I’m glad your door is open. Mine is too. If you’d wandered into it, we could have had a conversation.”

Among the witnesses at the hearing was former FCC Commissioner Robert McDowell, now a partner in the law firm of Cooley LLP and a senior fellow at the Hudson Institute, who said he was testifying in his personal capacity. “I do not think additional legislation is needed,” Mr. McDowell said, but he added that regulatory policy on this issues “has swung back and forth,” creating uncertainty for providers, and “the time has come for Congress to provide clarity and certainty.”

Matthew Wood, vice president–policy and general counsel of the Free Press Action Fund, said the Save the Internet Act “restores the FCC’s power to make new rules, preventing new forms of discrimination.”

In response to a question from Chairman Doyle, Gregory Green, chief executive officer of rural provider Fatbeam, said that the 2015 open Internet order did not affect his company’s ability to obtain financing, a criticism of the 2015 order often levied by opponents of Title II classification.

Francella Ochillo, VP–policy and general counsel for the National Hispanic Media Coalition, said that Title II is the source of the FCC’s authority to provide low-income support for Lifeline customers.

In response to questions from Rep. Latta, Mr. McDowell said that Title II classification could lead to government price-setting for Internet services, government direction on how such services should be bundled, government direction on where such companies should make investments, and government regulation of interconnection.

Chairman Doyle later said, “All of the questions asked by the ranking member with the exception of interconnection were answered accurately by Mr. McDowell, but those are parts of Title II that are not part of this bill,” because they would be covered by the codification of the forbearance provisions of the 2015 order.

Rep. Darren Soto (D., Fla.) appeared to break from the majority’s expressed intention of moving forward expeditiously with mark-up of the Save the Internet Act, saying, “This bill is just a beginning. We can have a series of hearings.”

Asked by Rep. Soto for any suggestions for improving the bill, Ms. Ochillo said she would like for the FCC to have an “obligation to disclose how effective its universal service programs are.”

Rep. Billy Long (R., Mo.) said that Free Press had “attacked” him on Twitter, and asked Mr. Wood to submit in writing how many fund-raising emails Free Press has sent regarding net neutrality in the last two years, and how much money it has raised related to these issues.

Rep. Susan Brooks (R., Ind.) said that the Save the Internet Act “has no chances to be taken up by the Senate.” As co-chair of Congressional 5G Caucus, she said, “we need to stop fighting about this so we don’t fall behind the rest of the world.”

Later, Mr. McDowell said when he was on the Commission in 2011, the agency expanded Lifeline support to include broadband service without classifying broadband as a Title II service.

Mr. Wood said that the agency’s action survived appeal because it claimed it had an independent source of authority in section 706 of the 1996 Act, an interpretation of section 706 that the Commission has since renounced.

Rep. McMorris Rodgers, who is not a member of the committee, was allowed by unanimous consent to speak during the hearing. She said, “I believe there is bipartisan support for the bright lines,” a reference to the 2015 order’s bright-line rules against blocking, throttling, and paid prioritization. “I am disappointed to see the majority moving forward on a bill that has no change [of becoming law],” she added.

“If it were truly the crisis it has been made out to be, there should be more willingness to solve it. This bill is not going to pass the Senate,” she said.

Wrapping up the hearing, Chairman Doyle said, “If the minority desires a bipartisan approach and wishes to work with the majority, they should let us know about that. I got no phone call [from minority leadership]. What we got instead was three bills dropped with no warning to us.”

As for Republicans’ contention that the bill could not pass the Senate, Chairman Doyle noted that the Senate passed the Congressional Review Act resolution to disapprove the 2017 RIF order last year, and that would not have codified the forbearance provisions of the 2015 order.

However, the CRA procedures, which no longer apply due to the passage of time, make it easier to get a floor vote in the Senate.

“We’re going to move forward in regular order” with a mark-up in the subcommittee and full committee, Chairman Doyle said. “The minority will have the opportunity to enter their objections and amendments then.” —Lynn Stanton, [email protected]

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