Title II opponents were not flocking to the proposal by Rep. Henry Waxman (D-Calif.) that the FCC use both a stripped-down Title II AND Sec. 706 authority to underpin new network neutrality rules.

The National Cable & Telecommunications Association framed its opposition to the hybrid proposal in senatorial-like courtesy, but its message was clear: Even a little Title II is too much.

"We appreciate Ranking Member Waxman’s thoughtful proposal in that it implicitly recognizes the onerous dangers of applying backward looking regulation to the Internet," said NCTA in a statement. "Nonetheless, the reclassification of broadband as a Title II service is unnecessary to provide consumers with reasonable network neutrality protections and will result in years of uncertainty and legal tussles. History has shown that forbearance is far from certain or quick and Title II advocates have already indicated their opposition to the type of forbearance that this approach suggests. At a time when the Internet economy is growing and thriving, regulatory uncertainty would only chill investment, innovation and the tremendous progress we’ve become accustomed to.”

That was seconded by Doug Brake, a telecom policy analyst with the Information Technology and Information Foundation (ITIF), who said the "hybrid" was actually a regulatory flexibility guzzler.

“While Congressman Waxman has clearly put some thought into this letter, we would argue that were the FCC to follow its advice, it would be taking a step backward, not forward regarding the debate over net neutrality," he said.

"First, the framing of the letter as a ‘hybrid’ compromise between 706 and Title II is inappropriate. His proposal would gut section 706 of all its advantages, effectively removing the FCC’s ability to carefully decide what forms of discrimination are appropriate over time. The approach is more a combination of the worst of Title II with expanded FCC section 706 power than anything resembling a compromise. Congressman Waxman fears the main advantage of 706 – its flexibility.

"The FCC is in this pickle to begin with because the outdated silos of the Communications Act do not suit the converging world of broadband. Congress should be focusing on rewriting a new Communications Act to meet this new reality rather than advising the FCC to shoe-horn new regulations into old ones.”

House Energy & Commerce Committee ranking member Henry Waxman (D-Calif.) is pitching FCC Chairman Tom Wheeler on a hybrid Title II/Sec. 706 approach to reconstituting network neutrality rules.  

The proposal is targeted to an Oct. 7 FCC network neutrality forum on "new ideas for protecting and promoting an open Internet," which will consider hybrid options, among others.

In a 10-page letter to Wheeler, Waxman, who is retiring at the end of this session, suggested reclassifying Internet access under Title II regulations, then using Sec. 706 authority to establish bright-line rules banning blocking, "throttling," and paid prioritization.

“Using a combination of reclassification under Title II and section 706 would give the FCC broad authority to establish strong rules to protect the open Internet," he said. "This approach can produce the bright-line protections that advocates are seeking while avoiding the invocation of the Title II authorities most strongly opposed by the broadband providers."

Waxman wants those bright line rules, but says the problem is that the court has pointed out that outright bans can not be applied unless ISP's are classified as telecommunications services subject to Title II common carrier regs.

But he also has concerns about relying exclusively on Title II. Some opponents of Title II point out that it would not ban paid priority because sec. 201 and 202 allow for differentiated service and pricing under reasonable terms and conditions, so Waxman would have the FCC forbear--not apply--those. The FCC would wind up forbearing most of Title II under the Waxman plan, similar to a suggestion from Rep. Anna Eshoo (D-Calif.), ranking member on the Communications Subcommittee.

He says that forbearance would assure ISPs the FCC was not going to regulate rates.

Rather than having to choose between sec. 706 and Title II, neither of which does the job alone, the FCC should use both authorities at once, he says.

No blocking, he explains, would prevent broadband providers from stopping the transmission of lawful traffic; a new, "no throttling," rule would prohibit slowing or degrading lawful traffic on the basis of content, applications, services or devices; and no paid prioritization would prohibit broadband providers from "entering into pay-for-play schemes with content providers and bar the use of access charges for the purpose of obtaining preferential treatment, including faster speeds or other favorable terms and conditions."  "No blocking" and "No throttling" would be subject to reasonable network management exceptions.

Waxman says uniformly applied data caps would be OK under the "no throttling" rule.

He argues for applying the regime to wireless as well as wired broadband, something the wireless industry generally opposes. But he says there should be a different interpretation of reasonable network management that accounts for the wireless industry's "unique bandwidth management challenges." He said he sees no reason why mobile nets would need to block or throttle content outside of that reasonable management carve-out.

Waxman said the FCC should have a waiver process for ISPs. He says he doubts those would be in the public interest since preventing blocking and throttling and paid prioritization are "the heart of an open Internet." But he concedes that the Internet is "dynamic" and that "it could be valuable to allow broadband providers to seek waivers or permission to conduct trails if the providers can demonstrate that a prohibited practice actually furthers the goals of Sec. 706." That is the congressional mandate that the FCC insure that advanced telecommunications are being deployed to all Americans in a reasonable and timely fashion.

The current FCC proposal for reinstating new network neutrality rules thrown out by the court would use Sec. 706 to restore no-blocking and no-unreasonable discrimination rules. It would permit commercially reasonable discrimination beyond a guaranteed baseline of service, though FCC Chairman Tom Wheeler has signaled that he doesn’t think that anticompetitive paid priority would pass muster under that commercially reasonable standard.  But Wheeler has also said Title II is on the table, and is being pressured by net neutrality activists to take it off the table and put it into the rulebook.

In his opening statement for a markup on several bills, House Energy & Commerce Committee ranking member Henry Waxman (D-Calif.) took issue with a statement from the committee's leadership criticizing FCC process.

Last week, HEC committee chairman Fred Upton (R-Mich.) and Communications Subcommittee chairman Greg Walden (R-Ore.), issued a press release saying "the process is clearly broken and something smells rotten on the [FCC's] Eighth Floor [where the FCC commissioners reside].

Waxman cited that press release and its complaints about the FCC using an "irregular process." He said he disagreed with the assessment, then turned the criticism on the committee.

Waxman complained that the committee was marking up bills, including the LABEL Act and an anti-spoofing bill, without subcommittee markups, which is the regular order. Waxman said bad process can produce bad results, but supported those bills as "common sense" legislation, even if he did not support the process.

"While they were not voted on in subcommittee," he said, " I support their passage."