TR Daily Republicans Place Legislative Markers in Net Neutrality Debate
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Thursday, February 7, 2019

Republicans Place Legislative Markers in Net Neutrality Debate

During today’s hearing before the House communications and technology subcommittee — its first in current congress, with Democrats in the majority — Republicans moved to steal a march on the Democrats in the net neutrality policy battle by announcing three legislative proposals for codifying open Internet protections into law.

Full Energy and Commerce Committee ranking minority member Greg Walden (R., Ore.) said in his opening statement that the Internet “flourished under light-touch regulation” before a Democratic-controlled FCC classified broadband Internet access service (BIAS) as a common carrier service under Title II of the Communications Act in 2015, only to see a Republican-controlled FCC reverse that decision in 2017.

Ranking member Walden suggested that the four Internet freedom principles outlined by witness and NCTA President and Chief Executive Officer Michael Powell when he was chairman of the FCC in 2004 “should guide us today.”

The Powell Internet freedom principles are viewed as a forerunner of the FCC’s long path toward net neutrality rules, adopted after the agency ran into court rejections of efforts to oversee providers’ network management practices without codifying its policies into rules.

Ranking member Walden called for a bipartisan solution to end the FCC’s repeated attempts to deal with net neutrality under its existing authority — included the possibility for future policy reverses as control of the FCC changes hands from one party to another — and lamented the failure of lawmakers to reach an agreement over the past 15 years.

“I acknowledge there were times when our side should have accepted what was offered, but same could be said of the other side,” he said.

In an effort to move toward a legislative solution, Rep. Walden said he was reintroducing “the offer I made in 2015,” which codified some net neutrality protections and FCC enforcement authority, while withholding FCC authority to expand the rules and rejecting Title II regulations. “The bill prohibits blocking, throttling, and paid prioritization, and requires that ISPs be transparent in their network management practices and prices,” he said today.

In addition, he noted, Rep. Bob Latta (R., Ohio), the ranking minority member of the communications subcommittee, has introduced legislation “drawn directly” from a draft proposal made by then Commerce Committee Chairman Henry A. Waxman (D., Calif.) after consultations with stakeholders in 2010, which also would have restricted the FCC from adopting net neutrality rules beyond those codified in statute (TR Daily, Sept. 27, 2010).

Also, Rep. Cathy McMorris Rodgers (R., Wash.) has introduced a bill that would codify net neutrality rules adopted in her home state, which, Rep. Walden noted, has a Democratic-controlled legislature and Democratic governor.

The proposed Promoting Internet Freedom and Innovation Act would “codify the ‘bright line rules’ of net neutrality, specifically: no blocking, no throttling, and no paid prioritization,” Rep. Rodgers said.

“These are issues that should have been resolved a long time ago,” she said. She emphasized that she does not believe it is “wise to regulate on state by state basis” and that she sees a federal solution as “the only way forward.”

Democrats criticized the current FCC approach, adopted in 2017, that classified broadband Internet access service as an information service and eliminated most net neutrality rules except for a transparency rule, but did not offer a bill or draft proposal.

Full committee Chairman Frank Pallone Jr. (D., N.J.) said, “Until last year both Republican and Democratic FCCs agreed that when consumers pay for access to the Internet, they should get access to the whole Internet.” He said that the promises of FCC Chairman Ajit Pai that the 2017 restoring Internet freedom (RIF) order would increase network investment, “many ISPs invested less in the Internet [in 2018] than in previous years. … I just believe that Chairman Pai’s mind was made up beforehand.”

Subcommittee Chairman Doyle responded to Rep. Walden’s remarks by reminding him “that the past efforts of FCC Republican and Democratic chairmen to do it the way he suggested [without Title II authority] were struck down by the courts. Only [former FCC Chairman Tom] Wheeler’s [approach was upheld by the courts].”

Later, however, during the questioning of witnesses, Rep. Bill Johnson (R., Ohio) asked Mr. Wheeler, who is now a fellow at the Brookings Institution, whether, “putting aside the roadmap offered by the court” that overturned a 2012 FCC order that adopted open Internet rules under Title I, Congress could “create new authority to protect net neutrality.”

Mr. Wheeler agreed that it could, and tried to address Rep. Johnson’s suggestion that the FCC in 2017 could have adopted net neutrality rules without classifying broadband Internet access as a Title II common carrier service, but Rep. Johnson cut him off, saying “We’re done.”

In a letter, Tech Freedom, Americans for Prosperity, Lincoln Network, Tom Schatz of Citizens Against Government Waste, and Roslyn Layton, a visiting scholar at the American Enterprise Institute urged Reps. Doyle and Latta to work on legislation “to end the lengthy, distracting, and toxic fight over net neutrality.”

Laying out their preferred approach, they said, “If Congress provides clear statutory authority for the enforcement of net neutrality principles, there will be no need for the FCC to reassert authority under either Title II or Section 706. In exchange for such authority, Congress should clarify that (i) Title II does not apply to Internet-based services other than ‘interconnected VoIP’ [voice over Internet protocol] (which replicates the ability of traditional telephony to call NANP [North American Numbering Plan] phone numbers) and (ii) Section 706 confers no independent authority.”

Several lawmakers and witnesses spoke with appreciation of former committee Congressman and Chairman John Dingell (D., Mich.), whose wife, Rep. Debbie Dingell (D., Mich.), a member of the committee, had announced he has entered hospice care.

In a statement, Computer & Communications Industry Association President and Chief Executive Officer Ed Black said, “We appreciate the discussion on net neutrality rules to promote innovation, free speech, and economic opportunity. Since the FCC abdicated its responsibility to oversee broadband networks and protect consumers, there has been uncertainty for consumers and companies that offer internet services and rely on them.”

Mr. Black continued, “For federal legislation to be effective, we would need to see strong, clear bright line rules preventing blocking, throttling, and discrimination like paid prioritization. We would need to see strong enforcement from the FCC. Furthermore, legislation must deal with interconnection.

“Many Members at the hearing expressed an interest in seeking legislation to codify net neutrality rules in statute. However, some exchanges between Members and witnesses revealed attempts to create confusion over what net neutrality rules mean and to whom they would apply. Bringing in edge services is an inappropriate and disingenuous attempt to confuse the issue of open internet access,” he added. —Lynn Stanton, [email protected]

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