TR Daily Legislation Would Rescind FCC’s 2017 RIF Order
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Wednesday, March 6, 2019

Legislation Would Rescind FCC’s 2017 RIF Order

House and Senate Democrats today unveiled the Save the Internet Act, which would rescind the FCC’s 2017 restoring Internet freedom (RIF) order and reinstate the agency’s 2015 open Internet order. While the legislation is expected to pass in the Democratic-controlled House and may pass in the Republican-run Senate, it’s unlikely to clear both chambers by veto-proof margins.

The FCC’s 2017 RIF order classified broadband Internet access service (BIAS) as a Title I information service and specified that BIAS is an interstate services. It also preempted state actions that conflict with the federal regime for Internet service providers. The 2015 open Internet order classified BIAS as a Title II telecommunications service and mobile broadband as a commercial mobile radio service.

The legislation unveiled today would restore the rules adopted by the 2015 order against blocking, throttling, and paid prioritization and the FCC’s general conduct standard.

The three-page bill would prevent the adoption of another order “in substantially the same form [as the 2017 order]… unless the reissued or new rule is specifically authorized by a law enacted after the date of the enactment of this Act.”

Last year, the Senate passed a Congressional Review Act resolution (S J Res. 52) introduced by Sen. Ed Markey (D., Mass.) disapproving of the FCC’s 2017 RIF action with Republican Sens. Susan Collins (Maine), John Kennedy (La.), and Lisa Murkowski (Alaska) joining Democrats in support of the resolution (TR Daily, May 16, 2018). Rep. Mike Doyle (D., Pa.) proposed a CRA resolution on the RIF order last year, but it never received a floor vote in the then Republican-controlled House. However, Senate Democrats would not be able to force a vote on the legislation introduced today as they were able to under the CRA procedures.

The net neutrality bill introduced today is again sponsored by Sen. Markey. It has 46 Democratic co-sponsors.

Rep. Doyle is introducing the House bill. It is expected to be introduced tomorrow or Friday, according to an aide to the congressman who said the number of co-sponsors wasn’t yet known.

“When we talk about a free and open internet, we mean an internet that is free from corporate control and open to anyone to communicate, innovate and connect. Net neutrality ensures that when you pay your monthly bill to your internet service provider, you can able to access all content on the web at the same speed as your neighbor or big corporations,” Sen. Markey said. “The Save the Internet Act is clear and simple: overturn the Trump FCC’s wrongheaded decision and restore strong net neutrality protections. Whether in the halls of Congress or the halls of the courts, we will not stop fighting until net neutrality is fully restored. I thank my colleagues in the Senate and House for their partnership in this fight.”

“The Save the Internet Act puts consumers first by once again putting a cop on the beat at the FCC and protecting them from abusive and discriminatory practices by internet service providers,” said House Energy and Commerce Committee Chairman Frank Pallone Jr. (D., N.J.). “This legislation protects a free and open internet, and I look forward to moving it through the Committee soon.”

“The bill we’re introducing today would provide essential protections against abusive Internet Service Provider practices like throttling, blocking, and paid prioritization to prevent or reduce competition,” said Mr. Doyle, who chairs the House communications and technology subcommittee.

The subcommittee plans to hold a hearing on the legislation next Tuesday. At a news conference this morning to announce the legislation, House Speaker Nancy Pelosi (D., Calif.) said she expects the House Commerce Committee to quickly mark up the bill, adding that “in a matter of weeks, we [the full House] will act upon this.”

She and other lawmakers called on their Republican colleagues to support the legislation, noting that it has drawn strong support in polls.

“We want this to be as bipartisan as possible because we know it is so in the public view,” Speaker Pelosi said.

“Now we have a Democratic house and Republicans will have a second chance,” said Senate Minority Leader Chuck Schumer (D., N.Y.). “Republicans should join us.”

Rep. Yvette Clarke (D., N.Y.), vice chair of the House Commerce Committee, noted that 182 Democrats signed a discharge petition in the House for last year’s bill.

Rep. Anna G. Eshoo (D., Calif.) said the legislation “has all the clarity in the world. There should not be any excuses on the part of any member of Congress because this has full clarity.”

At the Multicultural Media, Telecom and Internet Council’s (MMTC’s) Broadband and Social Justice Summit today (see separate story), Tim Robinson, Democratic chief counsel for the House Energy and Commerce Committee, responded to a question about the bill by saying that committee Democrats “would throw their support behind legislation that would clarify the status of broadband Internet access service providers.”

Asked whether he expected bipartisan support for the bill, Mr. Robinson said, “Some congresses ago, my gut would have told me no, but I am optimistic that we can get to a place that what comes out of committee or as amended on floor [will have bipartisan support] — but I do have a fair sense of confidence that we can get to a place that it passes the House chamber.”

Eric Einhorn, senior counsel–technology and communications policy for Sen. Brian Schatz (D., Hawaii), who is the ranking minority member on the Senate communications, technology, innovation, and the Internet subcommittee, noted that when the Senate approved the CRA resolution to overturn the 2017 RIF order last year, “we did get a few Republicans to come over, so that’s how it passed.”

Mr. Einhorn added, “This is a caucus-wide effort. … The intention has been just like with the CRA to work across the chambers.”

Not surprisingly, the legislation drew praise from Democratic FCC Commissioners and criticism from Republican Commissioners. Congressional Republicans also criticized it, while outside parties were mixed.

“The FCC was on the wrong side of the law, the wrong side of history, and the wrong side of the American public when it rolled back net neutrality,” said Democratic Commissioner Jessica Rosenworcel. “The FCC’s deeply unpopular decision is being challenged in the courts, in statehouses, and in Congress. I applaud the effort announced today to reinstate open internet rules at the FCC. I’ll keep raising a ruckus to support net neutrality and I’m glad so many others are too.”

Democratic Commissioner Geoffrey Starks said, “The American people have demanded a free and open internet and I am pleased that Congress has responded with today’s legislation. I continue to believe that the FCC’s 2015 Net Neutrality rules were the right approach and the bill introduced today takes us back in that direction — a direction that will empower the FCC to keep the internet open as a gateway to opportunity for students, job seekers, consumers, creators, and businesses. They and everyone need, deserve, and expect unfettered access to the internet. Last year, the Senate passed a similar measure, to restore the FCC’s 2015 Net Neutrality rules, on a bipartisan basis. I am hopeful that the bill introduced today will energize folks across the country that care about Net Neutrality and lead to restoration of the common-sense protections needed to keep the internet open.”

Tina Pelkey, spokeswoman for FCC Chairman Ajit Pai, defended the 2017 RIF order.

“The FCC’s return in 2017 to the bipartisan, light-touch approach to Internet regulation has been a success. This time-tested framework has preserved the free and open Internet. It has promoted transparency in order to better inform consumer choice. It has unleashed private investment, resulting in more fiber being deployed in 2018 than any year before and download speeds increasing by an astounding 36%,” Ms. Pelkey said. “And it has proven wrong the many hysterical predictions of doom from 2017, most notably the fantasy that market-based regulation would bring about ‘the end of the Internet as we know it.’ The Internet in America today is free and vibrant, and the main thing it needs to be saved from is heavy-handed regulation from the 1930s.”

“There is a lot of common ground on net neutrality. This bill studiously avoids it,” said Republican Commissioner Brendan Carr. “I would welcome legislation that codifies bipartisan net neutrality rules rather than a failed Title II regime that only slowed down broadband deployment throughout the country.”

“Consistent with my previously stated views, I find this effort to be intellectually dishonest,” said Republican Commissioner Mike O’Rielly. “The bill is lacking in substance, fraught with peril, and completely unhelpful in creating certainty or furthering the debate in a constructive way.” In a joint statement, Reps. Greg Walden (R., Ore.), Bob Latta (R., Ohio), and Cathy McMorris Rodgers (R., Wash.), the respective ranking members of the House Commerce Committee and its communications and consumer protection and commerce subcommittees said, “Republicans and Democrats agree, a free and open internet is fundamental to our society. Right now, without Title II, the internet remains a key driver of economic growth. Let’s come together to ensure that continues, because all sides want a permanent solution. Instead of looking to the extremes, and discarding twenty years of bipartisan consensus, we can come together on shared principles to address blocking, throttling, and paid prioritization.” They added, “Title II is not the answer, it paves the way for a regulated internet, an internet that does not protect the consumer nor allow for American ingenuity to thrive. We can do better.”

Republicans have already offered net neutrality legislation this year, including a bill from Mr. Walden that mirrors a legislative proposal he made in 2015 to codify some net neutrality protections and FCC enforcement authority, while withholding FCC authority to expand the rules and rejecting Title II regulations; a bill from Rep. Latta that is based on a draft proposal that then Commerce Committee Chairman Henry A. Waxman (D., Calif.) made in 2010 after consultations with stakeholders, which also would have restricted the FCC from adopting net neutrality rules beyond those codified in statute (TR Daily, Sept. 27, 2010); and a bill from Rep. McMorris Rodgers that would codify net neutrality rules adopted by the Democratic-controlled legislature in her home state.

Parties outside government had mixed reviews on the legislation. Internet service providers that oppose it said that Congress should pass net neutrality legislation but not a measure that classifies broadband service as a Title II common carrier service. But industry groups that represent competitors and Internet companies endorsed the legislation, as did public interest and consumer groups.

Chip Pickering, chief executive officer of Incompas, said, “Strong net neutrality made the streaming revolution possible and creates jobs and competition for main street American businesses. We welcome and support the open internet legislation introduced by Democratic congressional leaders today and hope that it will attract bipartisan support. INCOMPAS has consistently said we would only support strong net neutrality legislation that includes the four corners of open internet protections – no blocking, no throttling, no paid prioritization and strong interconnection. Last year we endorsed a Republican sponsored net neutrality bill covering these protections, and encourage both sides of the aisle to work together on a future focused solution. We would also note that this legislative proposal mirrors the language of the Congressional Review Act which was passed last year by a Republican controlled Senate with impressive bipartisan support. Over 80 percent of American’s support strong net neutrality protections that make starting a business easier and more affordable.”

“The internet has been historically neutral. After decades of legal battles by those who want to either make money from discrimination or look the other way, we are glad to see legislation to protect consumers’ and businesses’ access to the open internet,” said Ed Black, president and CEO of the Computer & Communications Industry Association. “As House Energy & Commerce Committee Chairman Frank Pallone (D-NJ) discussed today, an open Internet is crucial for small businesses and consumers. We hope Congress will act swiftly to restore, strong, net neutrality rules.”

Melika Carroll, senior vice president-global government affairs for the Internet Association, said her group also supports the legislation unveiled today.

“Internet companies believe that consumers should have access to the entire internet, free of blocking, throttling, or paid prioritization by ISPs. There’s overwhelming support – including from the internet industry – for enforceable net neutrality rules, and Congress should pass bipartisan legislation that provides consumers the protections they deserve,” Ms. Carroll said. “IA remains outcome oriented to protect consumers on this critical issue and supports the Save The Internet Act because it would reinstate these protections for all Americans through the 2015 Open Internet Order. The internet industry would also support bipartisan Congressional efforts that restore strong, enforceable net neutrality protections and will continue to fight for a free and open internet in the courts as an intervenor in Mozilla v. FCC.”

Evan Engstrom, executive director of Engine, said, “Startups need net neutrality protections to keep the Internet a level playing field, where young companies don’t have to outbid large incumbents for better access to users. That’s why we supported the FCC’s sensible 2015 Open Internet rules, which provided common-sense protections for the Internet. We appreciate today’s broad push by Democrats to restore the FCC’s 2015 rules and ability to keep the Internet open, and we encourage Congress to pass this much-needed legislation to protect the Internet.”

Sarah Morris, deputy director of the New America Foundation’s Open Technology Institute, said, “The bill announced today is the right path forward for Congress. Rather than reinvent the wheel, lawmakers should draw on the work done by the FCC to carefully consider both the need for clear, bright-line rules as well as the appropriateness of oversight to consider evolving and future harms. As OTI has documented extensively, interconnection-related consumer harms are a serious and immediate threat to internet openness, and those harms are not adequately prevented by the three bright-line protections. This bill is a common sense approach that is underscored by widespread, bipartisan support from the American public.”

“Free Press Action thanks these congressional leaders for this bold and vital step, returning to the best framework for restoring Net Neutrality and a whole host of fundamental rights that internet users need. The Save The Internet Act follows the facts, recognizing that the 2015 Open Internet Order and the laws on which it stood were exactly right for the job,” said Matt Wood, vice president-policy and general counsel for Free Press Action. “It draws on the overwhelming bipartisan support for this approach, including support among vast majorities of Republican, Democratic and independent voters. And the bill rejects lobbyists' empty rhetoric and evidence-free claims, understanding that broadband investment continued and deployment increased with the 2015 Open Internet Order in place.”

“Senator Markey, Rep. Doyle and allies have put forward a simple, consensus approach to restoring strong net neutrality protections, and we are happy to support their proposal,” said Public Knowledge VP Chris Lewis. “This proposal is simple yet strong because it relies on restoring the FCC rules that were upheld in court twice. The 2015 rules were carefully crafted to have a light touch on broadband through its many forbearances. It also avoids many of the pitfalls of other weak proposals this year that ask Americans to trade away important consumer protections at the FCC in exchange for only pieces of these net neutrality protections.”

Jonathan Schwantes, senior policy counsel for “Consumer Reports,” said, “This legislation gives consumers exactly what they want, an internet that is an open marketplace for all, and that puts the American people ahead of huge cable companies and internet service providers. Millions of consumers urged the FCC to scrap its plans to repeal the strong net neutrality rules passed in 2015, but the Commission ignored the overwhelming public support. Today’s legislation will restore what consumers lost last year. A similar version of this legislation passed the Senate with bipartisan support just 10 months ago, and now should be no different. The future of the internet is too important to leave in the hands of powerful corporate interests. Consumer Reports strongly endorses this pro-consumer legislation, and will work hard to see it enacted into law this year.”

Other public interest groups that support the bill include Demand Progress, the National Hispanic Media Coalition, Color of Change, the Center for Media Justice, and Fight for the Future.

U.S. Telecom Association President and CEO Jonathan Spalter said that “USTelecom’s members – large and small – are committed to maintaining our open internet and delivering consumers and businesses the content and services they demand. Unfortunately, the Save the Internet Act takes our open and thriving internet backward – not forward – and would have negative implications for America’s competitiveness in the global digital economy. Our view: it is important that lawmakers – now on both sides of the aisle – continue working on legislation to make net neutrality the law of the land. It is time for Congress to finally provide the certainty that will eliminate the confounding regulatory ‘rinse-and-repeat cycle’ that is bad for consumers, investment, and innovation.

“Rather than ‘saving the internet,’ the legislation introduced today would lead only to more uncertainty. Members of Congress considering such a drastic change in internet policy should understand what has not happened since the FCC’s 2017 order restoring the modern, pro-consumer framework that fueled internet policy through 20 years of astronomical growth,” Mr. Spalter added. “The internet as we know it is still very much open, thriving and growing. The dire predictions that internet service providers were poised to engage in throttling, blocking and anti-competitive prioritization have simply… not happened.”

“We are disappointed that Democratic leaders would ignore growing calls for bipartisan action, and instead advance a highly controversial, partisan proposal that puts the internet under heavy-handed government control,” said NCTA. “Despite significant interest in Congress, our industry, and across America in pursuing legislation that would codify core net neutrality rules and promote internet growth, this latest approach forcing Title II regulation back on the internet offers no such hope. The internet does not need saving. To the contrary, it is thriving, with wireless companies investing in advanced 5G networks and our industry advancing our 10G platform to deliver speeds 10 times faster than what is available today. We remain committed to finding a real bipartisan solution that offers consumers stable and enforceable protections, without the unnecessary overreach of common carrier regulation, so that this exceptional network progress can continue.”

“CTIA and our members support an Open Internet. We need permanent bipartisan rules to protect Americans online, while maintaining the opportunity for innovation that allowed the Internet to flourish. Today’s announcement unfortunately does not get us closer to a permanent solution to end the debate and protect consumers,” said CTIA President and CEO Meredith Attwell Baker.

Claude Aiken, president and CEO of the Wireless Internet Service Providers Association, said his group “is heartened by the fact that Congress has taken a renewed interest in this important matter, but we feel, as we did with the repealed regulations, that they fail to encourage the widespread deployment and adoption of Internet infrastructure, especially in under-served, rural areas of America. WISPs serve nearly four million, largely rural customers in places that the very largest providers have chosen to ignore. Our members are bridging the digital divide. Now. While we believe a comprehensive piece of Net Neutrality legislation is needed, it would work better with a ‘light touch’ framework to incentivize broadband growth and uptake. In doing so, Congress might also focus on releasing more spectrum for use by small rural companies such as our WISPs. This act alone could quickly and cost-effectively bring high-speed broadband to millions of Americans, making a significant dent in the fact that 24 million people in the U.S. lack adequate broadband access. As always, we stand ready to work with the House and Senate in a bi-partisan manner toward meeting the important goal of getting all Americans on the open Internet.”

American Cable Association President and CEO Matthew Polka said that “ACA has always supported Congress enacting open Internet legislation that would apply in all jurisdictions across the country to all firms operating in the Internet eco-system. No one should be able to block or otherwise impair broadband Internet access service subscribers from accessing lawful content, subject to reasonable network management practices. No one should be able to engage in unreasonable discrimination or paid prioritization. And, all providers should be required to disclose to customers key information about their service. All of these fundamental open Internet protections can be established without Congress turning broadband providers into common carriers or otherwise subjecting them to outdated regulation, which would deter providers, especially smaller providers, from investing in their broadband networks. ACA urges Congress to adopt these consensus open Internet requirements. The time has come to settle this debate in a way that recognizes and balances the interests of all stakeholders.”

“We've long supported an open internet. Our customers expect it and we're committed to providing it,” said Verizon Communications, Inc.

“This is a total sham, a fraud that cynically manipulates concern about net neutrality in a way that is carefully calculated to maximize Democrats’ political advantage instead of actually doing anything to protect net neutrality,” said Berin Szóka, president of TechFreedom. “Democrats are trying to revive their 2018 CRA resolution not because it would actually work, legally, but because they pressured three vulnerable Republican Senators into supporting that measure last year. Now they have the perfect political weapon: where the CRA allowed them to force a vote in the Senate but not the House, this time, the opposite will happen. They'll rush through a vote in the House, forcing vulnerable Republicans to either join them in support of a fake net neutrality measure or allow themselves to be painted as trying to kill the Internet. Unless Trump decides it isn’t worth the political fight, there’s no way [Senate Majority Leader Mitch] McConnell [R., Ky.] will allow a vote in the Senate, even if additional Republicans defect. That means the legislation is highly unlikely to be enacted — but then, that's precisely the point: Democrats simply want to attack Republicans over this issue in the 2020 election. This is pure political theatre.”

“It's time for Democrats to stop playing political games and finally do what Congress is supposed to do: legislate,” added Mr. Szóka. “It's now been almost eight years since they proposed any substantive legislative language of their own. If they truly care about net neutrality, they need to do what Republicans have been doing: trying to turn the language of the FCC rules into actual statutory text, instead of simply talking vaguely about ‘restoring’ the 2015 Order. If you set aside apart from Democrats’ preference for fighting about it over actually resolving it, all that stands in the way of resolving this issue is cleanly separating what have always been two different issues: net neutrality rules and the broader authority claimed by the Democratic FCC in the name of net neutrality — authority so broad it included the ability to impose price controls. Once Congress writes net neutrality principles into the statute, the FCC won't need to keep trying to invent its own authority to regulate Internet services.”

The Internet Innovation Alliance said it “strongly supports the adoption of legislation that will assure core principles of net neutrality: no blocking, no throttling, no paid prioritization. But we strongly disagree with the ‘back-to-the-future’ legislation announced by some members of Congress this morning, that common carrier rules first adopted for the era of monopoly telephones should be applied to the Internet. For over 20 years, including in the past year, the broadband internet has been regulated in a bipartisan consensus according to the light-touch rules first adopted during the Clinton Administration. Those rules helped the internet grow exponentially. For two years, we had a brief experiment with intrusive regulation, which the proposed bill seeks to restore, during which investment fell. With light-touch regulation now restored, network operators are deploying new and faster technologies at an accelerated rate. We can have both strong net neutrality principles and reasonable light touch, pro-investment regulation that will enable America to meet the challenge of newer technologies and lead the world in the deployment of 5G.”

“The Save the Internet Act at least aims in the right direction in that it would end the back and forth on broadband regulation through legislation. That both parties are each looking at legislation and potentially working toward agreement is a sign of progress. But that is where it appears the bill’s virtues end,” said Doug Brake, director-broadband and spectrum policy for the Information Technology and Innovation Foundation. “This legislation unfortunately contains a fatal flaw: returning to the problematic 2015 rules and the overly broad authority of Title II. No bill that classifies broadband as a common carrier under Title II of the Communications Act will gain widespread support. Title II is a non-starter. This legacy law simply doesn’t offer the balance a complex new platform like the Internet deserves. It would be far better for Congress to thoughtfully design a new section of the law tailor-made for the competitive dynamics of today’s broadband market. Politics are partisan enough today — why, when there is such widespread agreement on the principles of net neutrality, would we want to return to the controversial overreach of the 2015 rules? It is time for both Republicans and Democrats to stop going for a one-sided ‘win’ on this issue, and instead sit down and negotiate a mutually-beneficial compromise that ends the net neutrality debate once and for all.”

“Democrats in the House and Senate are introducing a bill today, again titled 'Save the Internet,' this time in 2019. You would expect a bill with such an ambitious declared purpose as saving the Internet, would, at least, in typical legislative fashion, set forth right up front the ‘findings’ that purport to show why and from what the Internet needs saving. No such luck — even though the bill, if adopted, would subject Internet service providers to the same outdated analog-era regulatory regime applied to Ma Bell when we all had black telephones,” said Free State Foundation President Randolph May. “The reality is that everyone knows the Internet has continued to thrive, broadband investment has been reinvigorated, and consumers’ Internet experience not been degraded since the FCC in early 2018 repealed the Obama FCC’s overly burdensome and costly Internet regulations. What is needed, if anything, is an effort to save the Internet from passage of the ‘Save the Internet’ bill.”

“House Democrats today introduced a bill to attempt an end run around the Internet Tax Freedom Forever Act,” Americans for Tax Reform complained. “The new Democrat bill, laughably called the Save The Internet Act, would raise household internet costs by about 20 percent: The Universal Service Fee currently only applies to telecommunications services such as voice communications. However, it is not applied to any data services such as home internet usage or mobile data. The Democrat bill would classify internet as a telecommunications service. This would allow federal, state, and local governments to impose the universal service (and other) fees on your data connections.”- Paul Kirby, [email protected]; Lynn Stanton, [email protected]

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