Barton: Courts or Congress Will Strike Down FCC's Latest Net Neutrality Effort

Rep. Joe Barton (R-Tex.), former chairman of the Energy & Commerce Committee, warns that the FCC's latest effort at net neutrality rules will be struck down, either by the courts or Congress. He also says he thinks that, "on the surface," Congress would be generally receptive to the Comcast/Time Warner Cable merger.

In an interview for C-SPAN's Communicators series, Barton said that they would want to look into any "local issues" where there was market dominance or a "disproportionate share of concentration."

On network neutrality and FCC chairman Tom Wheeler's decision not to close the Title II docket, Barton said the FCC, under President Obama, who has long championed net neutrality rules, "just doesn't get it."

He pointed out that the FCC's efforts to regulate net neutrality had been struck down twice, and suggested the third time would not be the charm. "This latest proposal will be struck down again in court, or by the Congress."

Barton said the Internet of today bears "no resemblance" to the monopoly telephone providers of the last century. He suggested a one-price-fits all model of the Internet is "just wrong." He said that if he buys a gallon of milk at the store, he pays $3.50 a gallon. "[FCC chair] Tom Wheeler's FCC wants to say you can use as much milk as you want and you only have to pay $3.50."

Barton talked about Netflix as the biggest user of the Internet, sometimes as much as 30%. "Obviously Netflix should pay more than somebody who uses the Internet once a month." He conceded he was simplifying it, but said companies had spent billions for the capacity we all take for granted, and that "at some level they should be allowed to charge based on volume" for "mega-users" and so-called "broadband hogs."

Netflix just signed a deal in which it will pay Comcast for a direct connection to the MSO, which is the nation's largest MSO and carries a lot of that high-volume video traffic.

Barton said he agreed it was time for the committee to take a new look at the 1996 Telecommunications Act, pointing out that there will be some new eyes to do so with the announced retirements of veteran telecom oversight legislators John Dingell (D-Mich.), Henry Waxman (D-Calif.) and the move of Ed Markey (D-Mass.), to the Senate.

Barton, who has teamed with Democrat Markey in the past on online privacy protections for kids said he would welcome the President getting more involved in the issue, pointing out that was an unusual request coming from a Republican.

The White House put out a privacy bill of rights a couple of years ago, and said the legislation backstopping it would be welcome, but it has focused on getting industry to come up with self-regulatory guidelines, to so-far mixed results. Guidelines on mobile app privacy are being vetted, while the stakeholder process of coming up with them for facial recognition software began earlier this month.

Barton said he did not know why privacy legislation, including his own, had not moved, but that with privacy issues on the front pages related to the Obamacare Web site, the IRS and NSA, "more and more the average voter is going to make us move on privacy," whether a bill of rights bill, or one protecting children's privacy. "It is time to do that," he said.

Barton was asked why a deregulatory Republican would support the government telling Google or Facebook how they can handle his information. He said he didn't consider the government protecting his individual rights to be intrusive. "I think Google and Facebook are intrusive when they gather information without your permission and use it in ways you might not approve of if they knew how they were using it."

He says the constitutional prohibition of illegal search and seizure should extend to an individual right of privacy. He also pointed out that he has an "agree to disagree" relationship with Google.

Talking about the broadcast incentive auctions, Barton said there is a real concern about how many broadcasters are going to give up spectrum. He said, conceptually, Republicans are for auctions and volunteerism, but "how this is going to work out is anybody's guess."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.