The pandemic has created a new sense of urgency about closing America’s digital divide, elevating it from something that is desirable to something deemed essential. Not surprisingly, we’ve seen an outpouring of proposals for ways the government should assist, which vary greatly in the levels of recommended funding and the methods for allocating government dollars.

President Joe Biden recently agreed to a $1.2 trillion bipartisan infrastructure plan that includes $65 billion for building out broadband across the nation (a substantial reduction from his $100 billion proposal for broadband). Now, the package needs Republican support to pass the Senate.

Achieving universal broadband by equipping every American with the transformative power of digital tools, social networks and online platforms would be a milestone accomplishment, but simply appropriating funding does not guarantee success, and with a decreased amount of funding, expenditures must be judiciously planned. As lawmakers sift through a myriad of ideas on how the funds should be spent, ensuring the best use of taxpayer funds and carving the most efficient path toward universal connectivity should be top priorities.

Here are three guiding principles for allocation of federal dollars to close the digital divide.

Don’t miss the forest for the fiber: America’s broadband infrastructure investment should be based on techn­ology-neutral criteria, allowing for a combination of solutions that are adapted to local needs and can be rapidly and cost-effectively deployed. With limited funds to tackle all three parts of the digital divide  —  deployment, affordability and adoption  —  ensuring the most efficient use of funds is critical. For deployment, while policymakers may reasonably favor the use of fiber optics where feasible, they should resist the urge to foreclose other next best solutions, especially in those hardest-to-serve areas where, even with government subsidies, it may be uneconomical to lay miles and miles of fiber to serve a single household.

To get infrastructure legislation passed, now’s the time to make practical funding allocation decisions to ensure that the gap between digital haves and have-nots can be closed with the federal dollars made available. Fiber costs $20,000 per mile, by some estimates, and connecting every home with fiber in rural, mountainous and sparsely populated locations would prove prohibitively expensive.

In short, fiber should be deployed when reasonable, based on geography and population density. It may not make sense, for example, to bring fiber to Supai, Arizona, which can only be reached by foot, pack animal or helicopter. In some cases, subsidizing satellite internet services could prove more cost effective than reaching every end point with fiber.  

Use market mechanisms to maximize broadband deployment: Federally funded broadband deployment should be structured in a market-sensitive way. Over the past decade, the Federal Communications Commission has developed a competitive funding allocation process, via reverse auctions, to ensure broadband projects produce the greatest benefit for the dollars expended. The auctions maximize efficiency as bidders compete against one another to offer the lowest price at which they are willing to provide their services.

It would make sense to hold a series of auctions, rather than a single auction, to benefit from lessons learned from previous bidding rounds. Additionally, holding multiple auctions would help ensure that unserved communities don’t fall through the cracks, in the event that there is no round-one bidder for certain areas. 

The more bidders the merrier: In order to encourage a highly competitive market, all qualified, proven and capable bidders should be welcomed into the process. Strong guardrails should be put in place to ensure entities seeking to bid have the resources required to deliver on their promises. Once these standards are met, the more bidders the better.

No priority or favoritism should be given to any category of bidder based on for-profit or not-for-profit status. The goal is to get the job done, and it’s in Americans’ interest that the entities best suited to build and operate broadband networks be trusted with taxpayer dollars.

The digital divide has been a problem for the past quarter-century. Closing the gap is now a national priority, and bipartisan support for a solution has never been stronger. With the appropriation of federal dollars for broadband now likely, a well-considered allocation plan along these lines is the next essential step.

Rick Boucher was a Democratic member of the U.S. House from Virginia for 28 years and chaired the House Energy and Commerce Committee’s Subcommittee on Communications and the Internet. He is honorary chairman of the Internet Innovation Alliance (IIA).

Waiting. That’s the name of the game for those anticipating the U.S. Court of Appeals for the D.C. Circuit’s decision on the Federal Communications Commission's Restoring Internet Freedom order repealing Title II rules for broadband. 

The case was argued on Feb. 1 of this year, so the D.C. Circuit could hand down a ruling any day now. But regardless of whether the decision is uphold or overturn, Americans deserve action on net neutrality from Congress. Statutory permanence for internet openness is the only way to end the ongoing uncertainty shrouding the internet ecosystem due to ever-changing rules. As we await the D.C. Circuit’s decision, it’s worth recalling what’s at stake.

In 2015, the FCC ruled that broadband is a Title II telecommunications service, subject to the common-carrier rules developed for the predigital age of monopoly-controlled telephones. With this ruling, the FCC abandoned the previous 20 years of light-touch regulation of broadband first adopted during the Clinton administration. During those two decades of regulatory certainty, America experienced a golden age of broadband investment that made our communications network the envy of the world.

With the FCC’s 2015 ruling, investment in broadband networks declined for an understandable reason: Carriers simply did not know which of the FCC’s Title II authorities would be imposed upon them and when. Would rates be regulated? Would the FCC require that network elements be unbundled and made available to competitors below the broadband carriers’ costs?

The regulatory uncertainty created by the 2015 rule placed a severe damper on investment at the very time when mobile broadband carriers are preparing to deploy 5G networks, which will require unprecedented levels of investment and enable advances such as autonomous driving and Internet of Things (IoT) connectivity.

Recognizing the mistake of the 2015 order, in 2018 the FCC restored the status of broadband as a Title I information service subject to the light-touch regulation that had prevailed with bipartisan support from the first commercialization of the internet until 2015.

Further, the FCC made the right call to exercise preemption of conflicting state and local regulations. So, for that matter, did the FCC in 2015 when it included preemption in its order imposing monopoly-style telephone service regulation on the broadband internet. The internet doesn’t recognize state lines, and in a national digital economy, uniform national regulation is essential.

The D.C. Circuit is giving careful consideration to the question of whether the 2018 FCC order is valid. Whatever the outcome, the matter should not rest with the court’s decision. It’s essential that Congress put to rest the net neutrality debate, which has now raged since 2003. A simple formula for a statutory resolution would include the codification of net neutrality protections along the lines of the FCC’s 2010 Open Internet Order, which was endorsed by broadband providers and by companies that provide content at the internet edge. The statute would also designate broadband as a Title I information service in recognition of the regulatory construct that prevailed for all but two years of the past two decades. The regulatory certainty of that statutory permanence would open the door to the tens of billions of dollars of investment required to build our 5G future.

If Congress fails to act, we can anticipate a never-ending seesaw between Title I and Title II status for broadband with every change in administration.

Despite the passion of the net neutrality debate, I believe compromise is possible. Why? Many prominent Republicans have now accepted the need for the core protections of net neutrality (one Republican bill is modeled after former Democratic Rep. Henry Waxman’s net neutrality bill from 2010). And senior Democrats should accept information services status for broadband if the core net neutrality protections are embedded in statute.

Congressional action would put the issue behind us, obviate the need for further attention from the courts, and set the internet on course for another decade of growth. The stage would then be set for Congress to adopt other needed online protections for consumers, including a uniform requirement that all participants in the internet ecosystem — from edge providers to the ISPs that connect users to the network — protect the privacy of internet users.

Only Congress can, at last, bring an end to the longest running and most intense telecommunications debate of the 21 century.

Rick Boucher was a member of the U.S. House of Representatives for 28 years and was chairman of the House Energy and Commerce Committee's Subcommittee on Communications and the Internet. He is honorary chairman of the Internet Innovation Alliance (IIA) and a partner in the Washington, D.C., office of law firm Sidley Austin.

The FCC's conclusion in 2016 and again in 2018 that mobile broadband is not a "functional substitute" for fixed broadband is outdated and needs to change.

That is the conclusion of a June study of 10,000 consumers commissioned by the Internet Innovation Alliance.

IIA honorary chairman Rick Boucher said the FCC relied on the 2016 analysis in making the determination they are not substitutes, and that those findings are now obsolete. He said it was time for a fresh look at fixed and mobile broadband, and the IIA was sharing the findings and an accompanying white paper with the FCC Tuesday (July 17).

Boucher said 43% of respondents either preferred mobile or had no preference, with 47% saying they preferred fixed, which Boucher said was functional equivalency. 

He also said consumers use wired and wireless in the same ways across various functions, including streaming video or watching news and reports.

Boucher said the FCC should tell Congress in its next annual report on availability of advanced communications that the two are functional equivalents.

Related: CWA Says Wireless Is No Substitute for Wired Broadband

The FCC is under a congressional directive to periodically assess deployment of advanced communications and is empowered to regulate in the event it finds it is not being deployed in a reasonable and timely manner, as was the finding of the report under FCC chair Ajit Pai's Democratic predecessors.

Boucher said the goal is for the FCC to use the most current data when it reports to Congress, which has made it clear that deployment of advanced communications is a key policy goal.

Consumers are seeing fixed and mobile services as exchangeable on price, affordability and speed, not simply that they would like mobile as well as fixed, all those things being equal, Boucher said, adding that when 5G arrives, the numbers will shift dramatically toward the mobile side.

But even with the numbers moving toward functional equivalency, fixed broadband remains the preferred access point, with 26% saying that was their preference, versus 23% for mobile, 20% no preference, 14% fiber and 7% DSL.

Former Democratic House Communications Subcommittee chair Rick Boucher, now with the Internet Innovation Alliance, said Democrats should drop their effort to nullify the FCC's Dec. 14 net neutrality rules rollback and instead work toward legislation mirroring the 2010 Open Internet order.

That order put forth the compromise rules based in Title I that virtually all the ISPs agreed to.

Boucher said activists pushing a Congressional Review Act resolution in Congress to roll back the rollback are delaying a legislative solution that would insure an open internet for everyone.

Related: Sen. Kennedy Pressed on Net Neutrality CRA

In a commentary for Bloomberg/BNA, Boucher said the 2010 would be a "useful" model for that legislative solution.

"Codification of the requirements of that rule, along with a provision declaring broadband to be an information service, would be a simple and straightforward legislative enactment giving both Democrats and Republicans satisfaction on their key priorities," he said. "For Democrats, the priority is open internet rules similar to the ones Democrats endorsed with the 2010 Open Internet order.

Related: Coming to Terms With Title II

For Republicans, the statute would return broadband to information-service status. It’s a win-win solution that should receive bipartisan support.”

Boucher said an added benefit of such legislation is that it could create online privacy protections that apply to the edge as well as ISPs, "so that consumers won’t have to wonder what protections they have, depending on how and where they access the internet."

Boucher said he is confident the two sides can come together, a sentiment expressed earlier in the week by former Communications Subcommittee chair and current full committee chair Greg Walden (R-Ore.), but that would appear to be a long shot given the current tenor of debate in D.C. and, specifically, most Democrats hard line on returning to a Title II regime -- a nonstarter for Republicans.

All the Senate's Democrats and a majority of House Dems have said they would support the CRA nullifying the rules and returning to Title II.

Boucher has been consistent in his opposition to Title II. As chairman of the subcommittee back in 2010, he said he would prefer legislation establishing targeted network openness principles to the FCC's proposal of applying Title II regulations to the transmission component of broadband.

Boucher is currently head of the government strategies group at Sidley & Austin in Washington.

Netflix’s stunning admission that, for five years, it reduced the video speeds of customers of Verizon Wireless and AT&T Wireless — while not doing so for customers of Sprint and T-Mobile — is little short of breathtaking. It was an exercise in hypocrisy to claim that broadband providers were degrading the quality of its video when, in fact, Netflix — without notifying its customers — was doing precisely that.

Recall the history here to understand why Netflix’s actions were so brazen and deserving of governmental review. Traditionally, peering agreements among content networks and last-mile Internet-service providers (ISPs) were never regulated, but were always negotiated between private parties.

For Netflix, arm’s-length negotiations posed a problem, because as the share of total bandwidth taken by its content grew (up to 37% at peak hours, according to one survey in March of 2015), its position became ever more untenable. It wanted ISPs to build more bandwidth to consumers for Netflx’s use, but it didn’t want to help pay for that. It didn’t want its own business model constrained.

SHIFTING THE COST BURDEN

Instead, Netflix tried to shift the real costs of its service onto others — the local network operators. In fact, it wanted “free interconnection” with the ISPs shouldering all of the costs of the upgrades required to carry the ever-growing volume of Netflix traffic. Then, as the flood of Netflix content caused consumers to experience problems with video quality, Netflix was quick to put the blame on the ISPs.

Also remember that Netflix was a driving force in advocating for network neutrality. The company’s CEO, Reed Hastings, pushed first against Comcast and then against ISPs more generally, accusing them of “purposeful congestion” and pushed free interconnection for Netflix’s services. In a sharp departure from an unbroken history of peering agreements being negotiated by private parties through which the network responsible for delivering a greater proportion of traffic to the other network would bear the resulting cost, he demanded that “they (ISPs) must provide sufficient access to their network without charge.”

Hastings blamed video quality problems on a lack of interconnectivity, even as — without disclosure — Netflix itself was slowing down video. Then, while continuing to complain about video quality degradation, the company persistently and successfully urged the Federal Communications Commission to include regulatory oversight over interconnection for the first time as an aspect of the net-neutrality rulemaking. That unprecedented assertion of authority is now a central feature of the litigation presently pending on the net-neutrality order.

ISPs, whether cable, wired telco or mobile, weren’t throttling or slowing Netflix video. Netflix was. This fact matters for yet another reason. One of the central responsibilities imposed by the net-neutrality order on broadband providers is transparency in network management practices. It must be noted that while being one of the strongest advocates of the FCC using last-century common-carrier rules to impose net neutrality obligations on the ISPs, the company was simultaneously secretly violating one of the core net-neutrality principles, the necessity of being transparent in its network management practices. The practice of degrading video for customers without notice was anything but transparent.

A MATTER OF MATH

Network-management practices that deliver fast, reliable Internet content rely not on blog posts and banging drums for government action, but on sound engineering and sound mathematics. The French writer Stendahl wrote, “Mathematics allows for no hypocrisy and no vagueness.” Nor should legal proceedings. Now that Netflix’s actions are publicly known, there is a clear path forward.

The Federal Trade Commission has jurisdiction over unfair trade practices in the Internet ecosystem. Advertising one service, such as level of video quality, while delivering a lesser service falls within the ambit of an unfair trade practice. Did Netflix advertise a service it failed to deliver? Were its conduct and its disclosures to customers consistent with fair trade practice?

Congressional committees may also legitimately ask about the circumstances that led the FCC to take the unprecedented step of departing from voluntary peering arrangements and asserting regulatory authority over interconnection between networks. In both venues it’s timely to ask some serious questions regarding Netflix’s behavior. These proceedings could even become a new Netflix hit, a true-life House of Cards.

Former U.S. Rep. Rick Boucher (D-Va.) was a House member for 28 years and chaired the House Energy and Commerce Committee’s Subcommittee on Communications and the Internet.

My involvement in formulating the Telecom Act of 1996 began in 1988, when I joined with then-Sen. Al Gore in introducing legislation to allow telephone companies to offer cable TV service (multichannel video distribution services) in their telephone service areas. That measure became the first plank in the ’96 Act, and it was joined by a provision to enable cable companies and other competitors into the local telephone market, a provision to create greater competition in the long-distance market by setting the conditions for the entry of the regional Bell operating companies (RBOCs) into the nationwide long-distance market and a provision enabling the RBOCs to manufacture telecommunications equipment. I was active throughout the committee process in processing the ’96 Act and served as a member of the conference committee.

My “birthday wish” for the act is that Congress adopt much-needed legislation recognizing the digital and mobile era into which telecommunications has emerged. The ’96 Act was about analog services and, to a large extent, “plain old telephone services.” The following provisions will help to modernize the ’96 Act for the digital era:

1. Congress should pass legislation that declares broadband is an information service not subject to common-carrier regulation. The legislation should also give statutory permanence to strong network-neutrality guarantees along the lines of the FCC’s 2010 open Internet order. Such a bill allows both network-neutrality proponents and the proponents of light-touch regulation of broadband to achieve their major legislative objectives, and puts to rest the longest standing and most contentious telecommunications debate of the 21st century. It would also remove the uncertainty about future broadband regulation, which is restraining broadband investment.

2. Congress should recognize in legislation the advanced nature of the Internet- protocol transition and set a date, perhaps 2020, for the sunset of the old legacy copper network. Every dollar that telephone companies are required by law to expend today maintaining the copper network is a dollar not expended on fiber optics and other advanced 21st century telecommunications infrastructures.

3. Another legislative provision should create incentives for government agencies to surrender telecommunications spectrum for auction to commercial wireless carriers. Simply stated, government agencies should be offered a share of the auction proceeds in exchange for a surrender of the spectrum they hold. That approach appears to be working in the case of television broadcasters, and there’s every reason to believe it would work well for government agencies. In my mind, that’s the best approach to getting large allocations of spectrum onto the commercial auction block quickly to meet the growing demand for spectrum for mobile data.

4. Congress should also adopt a Bill of Rights for privacy for Internet users with jurisdiction in the Federal Trade Commission over all telecommunications privacy issues. Giving Internet users greater assurance that their privacy is protected should result in a greater willingness to use the Internet for commercial purposes.

Rick Boucher is honorary co-chairman of the Internet Innovation Alliance and was a U.S. House of Representatives member for Virginia from 1983 to 2011, serving as chairman of the Subcommittee on Communications, Technology and the Internet.

Today (Feb. 8) marks the 20th anniversary of the Telecommunications Act of 1996, which updated the Communications Act of 1934 let cable into the phone business and phones into cable.

B&C/Multichannel News polled some policymakers and watchers to weigh in on the impact of the principally deregulatory rule rewrite and to offer up a birthday wish if they liked.

Rick Boucher , former chair, House Communications Subcommittee

“My involvement in formulating the ‘96 act began in 1988 when I joined with then Sen. Al Gore in introducing legislation to allow telephone companies to offer cable TV service (multi-channel video distribution services) in their telephone service areas.

“That measure became the first plank in the 96 act, and it was joined by a provision to enable cable companies and other competitors into the local telephone market, a provision to create greater competition in the long-distance market by setting the conditions for the entry of the Regional Bell Operating Companies (RBOCs) into the nationwide long-distance market and a provision enabling the RBOCs to manufacture telecommunications equipment. I was active throughout the committee process in processing the 96 act and served as a member of the conference committee.

“My ‘birthday wish’ for the act is that Congress adopt much-needed legislation recognizing the digital and mobile era into which telecommunications has emerged. The 96 act was about analog services and to a large extent "plain old telephone services.” These provisions will help to modernize the 96 act for the digital era:

1. Congress should pass legislation which declares that broadband is an information service not subject to common carrier regulation. The legislation should also give statutory permanence to strong network neutrality guarantees along the lines of the FCC's 2010 open Internet order. Such a bill allows both network neutrality proponents and the proponents of light touch regulation of broadband to achieve their major legislative objectives and puts to rest the longest standing and most contentious telecommunications debate of the 21st century. It would also remove the uncertainty about future broadband regulation which is restraining broadband investment.

“2. Congress should recognize in legislation the advanced nature of the Internet protocol transition and set a date, perhaps 2020, for the sunset of the old legacy copper network. Every dollar that telephone companies are required by law to expend today maintaining the copper network is a dollar not expended on fiber optics and other advanced 21st-century telecommunications infrastructures.

“3. Another legislative provision should create incentives for government agencies to surrender telecommunications spectrum for auction to commercial wireless carriers. Simply stated, government agencies should be offered a share of the auction proceeds in exchange for a surrender of the spectrum they hold. That approach appears to be working in the case of television broadcasters, and there's every reason to believe it would work well for government agencies. In my mind, that's the best approach to getting large allocations of spectrum onto the commercial auction block quickly and meeting the growing demand for spectrum for mobile data.

“4. Congress should also adopt a Bill of Rights for privacy for Internet users with jurisdiction in the Federal Trade Commission over all telecommunications privacy issues. Providing to Internet users greater assurance that their privacy is protected should result in a greater willingness to use the Internet for commercial purposes.”

Matt Polka, president, American Cable Association

“One of the lessons we should learn from the 1996 Act is that because the communications market is so dynamic and because we do not legislate often, Congress should focus on crafting broader substantive principles, establishing sound procedures to address issues, and letting the FCC handle matters day-to-day with regular oversight.

“American Cable Association members believe any new legislation should be based on the precept that the federal government should permit the communications marketplace to work to the maximum extent possible and intervene only when necessary to ensure the availability of viable and competitive high performance communications networks and advanced services to all Americans.”

FCC Commissioner Michael O'Rielly

"Today marks the 20th Anniversary of the signing into law of the Telecommunications Act of 1996.  I vividly remember the events leading up to that moment and recall the strong leadership of my then boss, House Commerce Committee Chairman Tom Bliley.  

"The signing represented so much promise of what could be and reflected found trust between legislators.  It is a shame that many of the deals struck in the law were not actually honored and many provisions have since been abused beyond recognition by regulators, the courts and advocates.  My wish would be for the Commission to focus on the future of communications, rather than trying to drag new innovations into old fights."

USTelecom President Walter McCormick:

“With its twin pillars competition and deregulation, the Telecommunications Act of 1996 set the stage for the thriving broadband Internet economy we take for granted today. It transformed the communications industry from a group of isolated monopolies to a highly competitive, diverse, and innovative marketplace.

“Consumers are the greatest beneficiaries of these evolutionary changes. Having achieved its core market-opening goals and achieved a fast-paced, dynamic broadband economy, much of the Act is now obsolete. It is time for a refresh. Congress, as the elected representatives of the American people, must ensure that telecom policy addresses today’s challenges, not last century’s, and ensures that we retain our international leadership. “

Randolph May, president, Free State Foundation

“I followed [the Act] very closely as a lawyer practicing in the field and former FCC Associate General Counsel.

“I am happy to extend ‘happy birthday’ wishes to the Telecom Act of 1996, but, frankly, it’s now long past time to be readying ‘good-bye’ wishes too.

At best, the act was a transitional vehicle to help get us from the analog to the digital world. At worse, the statute was insufficiently deregulatory in direction, or at least sufficiently ambiguous that it could be interpreted in an overly regulatory manner, which is what we have now. We need a new Digital Age Communications Act soon, and, at its heart, it needs to have a silo-less market-oriented, competition-based standard to guide the Commission’s regulatory endeavors.”

Sari Feldman, President, American Library Association

“The Telecommunications Act and the E-rate program it created is the engine powering much of the digital transformation underway in America’s nearly 17,000 public library locations.  In 1996, only 28 percent of public libraries provided public Internet access, compared with over 99 percent who report this today.  Great hanks to Senators [Jay] Rockefeller, [Olympia] Snowe and [Ed] Markey for their foresight in enabling these strides in both public access and innovation!”

National Cable & Telecommunications Association President Michael Powell

Powell was traveling, but in an essay in the Federal Communications Law Journal at George Washington University Law School http://www.fclj.org/reflecting1996/,  Powell said this of the Act:

“When I was FCC Chairman I frequently testified before Senator John McCain’s Commerce Committee. The Senator always began with a pointed question to me: “Was the 1996 Telecommunications Act a success, yes or no?” He wanted me to say no, given that he voted against the Act. I always  answered emphatically, “Yes.…

“Sadly, the exceptional bipartisan consensus that gave birth to the 1996 Act and its liberating regulatory framework is breaking down. Now, the ambiguity of the Act—only getting worse with time—is being used to resurrect a muscular regulatory model that places renewed (and unfounded) faith in regulators to manage the Internet. The trends are ominous and cause me to rethink how I would answer Senator McCain today. I confess, I am wavering.”

Consumer Technology Association President Gary Shapiro

"Twenty years after it became law, the Telecom Act still helps encourage new technology and innovation," he said in a Birthday Greeting statement distributed to the press corps. "As we said at the time, the Act would aid our successful transition to HDTV, move in the right direction on spectrum and enable flexibility in product offering and consumer choice. As we also said at the time, mandating V Chip technology would accomplish little and hinder better parental option technologies.

"But overall, in the last two decades, the Act has not hindered companies from creating new products and services, and thanks to the Internet, new services and business models have benefitted the American people."

With the Telecommunications Act of 1996 marking its 20th Anniversary today -- Feb. 8 -- the Georgetown Center for Business and Public Policy will hold a media breakfast tomorrow (Feb. 9) to commemorate that anniversary.

The Act was the first major overhaul of communications regulations since the 1934 Act.

The breakfast will host a panel featuring some voices of experience--officials who were involved in drafting the legislation.

They will also posit what a Telecom Act of 2017 might look like. House Republicans collected string, and comment, on a revamp, but in an election year that is unlikely to get much traction.

Weighing in at the event: Ralph Everett, Georgetown Center for Business and Public Policy; Rick Boucher, honorary co-chair, Internet Innovation Alliance, and former chair of the House Communications Subcommittee; Harold Furchtgott-Roth former FCC commissioner and current director of the Center for Economics of the Internet, Hudson Institute; Larry Irving, co-chair of the Internet Innovation Alliance and former head of the National Telecommunications and Information Administration; and John Mayo, economics professor, Georgetown’s McDonough School of Business, and executive director, Georgetown Center for Business and Public Policy.

The House Communications Subcommittee hearing on net neutrality showed just how far apart the Democrats and Republicans -- at least the ones still on the subcommittee -- are on the issue of new net neutrality rules.

Committee chairman Greg Walden (R-Ore.) started the hearing by criticizing Federal Communications Commission chairman Tom Wheeler for not making a draft of his proposed new rules public before the Feb. 26 vote. He said he had asked the chairman to make the process a little more open than usual, but said the new rule process was hardly usual as it prompted colorful protests, a riff by HBO's John Oliver and a president's use of his "weight" to steer the decision.

The hearing was framed by the Republican draft legislative proposal that its drafters say would prevent blocking, throttling and paid prioritization without imposing Title II common-carrier regulations. Republicans say that is a sensible way to preserve light-touch regs while protecting an Open Internet. Walden said it would "quell" uncertainty in the marketplace and prevent further FCC trips to the D.C. Circuit, "at least on this issue."

But the Republican legislative draft's prohibition on Title II and its explicit "clarification" that Sec. 706 is not an affirmative grant of authority have kept Democrats off the bill because they see it as setting up prohibitions the FCC can't enforce, a point ranking member Anna Eshoo (D-Calif.) made at the hearing. But Walden said the FCC would still have full authority to enforce those prohibitions.

BOUCHER: 'RIGHT DIRECTION'

One Democrat who aligned himself generally with the draft bill and the opposition to Title II was Virginia's Rick Boucher, former Democratic chairman of the subcommittee. He said the bill went in the right direction, which was toward light-touch, Title I-based regulation, but also said Republicans needed to recognize Democrats' legitimate concerns with the bill. He suggested that limiting Sec. 706 went too far and said removing that language would be a sensible step toward a compromise. So far, no Democrats support the bill, which was initially billed as a potentially bipartisan effort.

Boucher tried to appeal to Title II-supportive Democrats on the committee by raising the political issue of what could happen under a new presidential administration. He said if a Republican president were elected and a Republican FCC majority installed, all net-neutrality rules could be wiped away, which was why a light-touch approach established by legislation was the best way to insure those protections lasted beyond the next political cycle.

Republicans also expressed concern that a Democratically controlled FCC could decide to un-forbear from rate regulation or unbundling or leased access provisions Wheeler has said would not be applied.

Rep. Frank Pallone (D-N.J.), ranking member of the full committee, suggested the hearing was not necessary. He pointed out that the subcommittee had held a hearing on the issue only a few weeks ago and said the FCC's vote would be a historic effort to create what may be the strongest Open Internet protections ever. He said it was an example of Washington listening to the voice of the people--he noted the 4 million FCC comments, as did Rep. Doris Matsui (D-Calif.).

Pallone also said he welcomed the Republican "change of heart" on protecting openness (a reference to the legislation). Walden had conceded earlier in the hearing that some of his colleague had to be dragged "kicking and screaming" to the table, but that they were there, and the Dems were not.

Eshoo said the bill would need a lot of work before that could happen.

Pallone said the subcommittee had a lot of other important work it could be doing rather than hold yet another net-neutrality hearing, like insuring that the next FCC auction was as successful as the $45 billion AWS-3 auction. Rep. Bobby Rush (D-Ill.), when his time came to ask questions, said he wished the committee would spend more time on independent program carriage issues and less on net neutrality.

In a response of sorts to Walden's criticisms of Wheeler not releasing the draft, Pallone said he was sure the chairman would put out the order language as soon as he could after the vote and called on the other commissioners to help make that happen, though it is not sure how. Even after the order is published, the FCC can continue to make edits until it is published in the Federal Register, usually two to three weeks later. That is when the language becomes official.

VOTE COMING THURSDAY

The backdrop for the hearing was the FCC's Feb. 26 vote. Democrats praised it as securing Internet freedoms. Republicans saw it as generating years worth of legal uncertainty, as well as the political uncertainty of which party might do what depending on their control of the White House.

Four witnesses testified at the hearing, three of whom were not Title II fans. Those were Boucher; Robert Atkinson, president of the Information Technology and Innovation Foundation; and Larry Downes, project director, Georgetown Center for Business and Public Policy. Backing Title II was Public Knowledge president Gene Kimmelman.

Atkinson said the term network neutrality itself should be consigned to the dustbin of history. He said the Internet never has been neutral, and noted that traffic like real-time video needs to be prioritized over, say, e-mails, because where a millisecond is immaterial to the latter, it is by contrast crucial to the former. He said a rigid regulatory scheme like Title II did not fit the 'net both because of that rigidity and because of the legal and political uncertainty it produced. He suggested the FCC was attempting to fit the square peg of smart net policy into the round hole of Title II.

Downes added his own metaphor in making the point that activists were already signaling they want to push the FCC toward the unbundling, last-mile access, build-out requirements and rate regulation (either before or after the fact), all of which the chairman has said would not apply under the new rules. Downes said that signaled that Open Internet rules were always the populist tail (or perhaps he meant "tale") that was wagging the shaggy Title II dog.

CABLE FEARS NEXT MOVES

Cable operators have made no secret that they fear not only what the rules do, but what the FCC might do down the line to expand regulations under Title II. One fear is that the FCC's forbearance from rate regs or unbundling will be challenged in court by net-neutrality activists as a way to reshape the order into an even more regulatory one.

Among the issues raised by Title II opponents on the panel and in the witness chairs was reclassification's impact on international telecommunications.

A number of Republicans, including Walden, pointed out that other countries have pushed for telecommunications designation-based, sender-pays models for Internet traffic, but that the U.S. has always pushed back using the argument that the 'Net is different from a telecommunications service.

Asked by Walden if Title II telecom classification would have implications for international termination agreements, Downes said he was sure there were those eager for the sender-pays model to argue that undermines the U.S.'s historic position. He said he was not sure they would win that argument, but it undercuts the U.S. "high ground."