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Battle Lines Drawn in Net Neutrality Fight

WASHINGTON — The congressional battle to keep the Federal Communications Commission’s Title II-based Open Internet Order is officially underway, with Democratic senators and veteran net-neutrality advocates saying they would fight any FCC effort to roll the order back and calling on the public to once again flood the agency with comments.

It is just the latest battle in a decade-long fight over how and whether or not the government should regulate Internet access.

At a feisty Capitol Hill press conference, Sen. Ed Markey (D-Mass.), joined by various veteran supporters of the net neutrality rule, said they would fight any effort to weaken the rules by a new Federal Communications Commission or even by Congress.

There was growing momentum for a legislative solution, which would be unlikely to include a classification of Internet-service providers as common carriers under Title II of the Communications Act, given the Republican opposition to that and the GOP control of the House, Senate and FCC.

New FCC chairman Ajit Pai, who voted against the order and Title II, took some shots from the senators, who suggested he would be doing the bidding of monopolistic cable barons by unwinding the rules.

The press conference was streamed live on YouTube and Facebook, with senators making direct appeals to the public to join the fight.

Sen. Patrick Leahy (D-Vt.) said of the need to get the public mobilized, “The millions of comments the FCC got before, we’ve just got to them again.”

Markey was aiming even higher. He pointed out that Congress was a “stimulus-response” body and that there was nothing like millions of people contacting lawmakers in support of the rules to provide stimulation. More than 4 million people weighed in at the FCC on the Title II-based order, he pointed out, saying that volume would look minuscule compared to what was to come.

Sen. Ron Wyden (D-Ore.) tried to rally the troops given the Trump administration’s support for unwinding the rules, Pai’s opposition to the rules and the reality of Congress being in Republican hands. He pointed to the SOPAPIPA fight in 2012, where about 15 million people weighed in and helped defeat the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), bills they saw as threats to online speech. That threat is also inherent in rolling back the net neutrality order, the senators said.

As with that fight, Wyden said: “Early on, it is going to feel like we are really pushing the rock up the hill. But if it comes down to the citizens, the grassroots against the special interests, we’re looking forward to that fight again.”

Also standing up for the fight and at the press conference were Sens. Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.).

Markey would not comment on any talks about net neutrality legislation since there were no specifics as yet, but suggested if a new law meant reversing Title II, it would not provide sufficient protections. “We cannot support anything that would weaken or undermine the existing rules.”

He also said the FCC’s broadband privacy protections, which are based in that Title II classification, needed to be preserved.

Markey painted the Republican targeting of Title II, along with those on Obamacare, the Environmental Protection Agency and immigration, as another Trump administration attack on basic values, these being a free and open Internet and free speech online.

Blumenthal said that what was at stake was not just the economic success that an open Internet provides, but also free speech. “Allowing an Internet provider to block or discriminate against certain content providers is not only a threat to the continued success of American innovators and inventors, but a danger to free speech at a time when so many of our First Amendment rights are threatened.”

There was more than one reference, veiled and unveiled, to Russian hacking, though the suggestion has also been that the Trump administration is its own threat to free-speech rights, given its attitude toward the press.

Blumenthal said he would fight as a member of the Commerce Committee.

Mobile Future, whose members include ISPs subject to the new rules, liked the idea of a legislative solution that would return to pre-Title II days.

“The constant partisan tug of war on the issue of broadband classification is bad for consumers and America’s mobile leadership,” Diane Smith, interim chair of Mobile Future, said. “The time for overheated rhetoric is over; the American people deserve a permanent, bipartisan legislative solution that memorializes 20 years of successful light-touch broadband rules.”

Sen. Bill Nelson (D-Fla.), ranking member of the Senate Commerce Committee, who was not at the press conference, suggested that legislation was the answer as well.

“The fact remains the fight over net neutrality protections has been going on for more than a decade and there’s still no end in sight,” he said in a statement to Multichannel News. “Because it’s expected the new Republican FCC will undo the agency’s net neutrality rules, I believe only Congress can provide lasting safeguards. I am still open to finding a bipartisan legislative solution, although it’s not going to happen overnight. At the end of the day, any legislation must fully protect consumers and still allow the FCC to respond to changes in the broadband marketplace.”

One high-profile legislator suggested that the FCC should get first crack at the Open Internet order.

House Communications Subcommittee chairman Marsha Blackburn (R-Tenn.), meeting with reporters, was asked what she thought the timetable would be for a network neutrality bill: “Let’s let the FCC go in and do what they are able to do, make the first move on that,” she said.

Asked how the FCC’s and Congress’s role in addressing the rules would dovetail, she said that after chairman Pai takes whatever actions he takes — she would not speak to them or for him — “the opportunity that we will have as a legislative body will be to take action that will move forward on some principles and definitions and make sure we don’t end up in the situation again where we had agency overreach and an agency that decides they want to go off-script.”

That is unlikely with the current FCC Republican majority, but one of the arguments for legislation is to look beyond that and prevent a definitional seesaw powered by changes in administrations.

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.