Broadband Bill Unites, Divides Hill

WASHINGTON — On the surface, House Democrats and Republicans appear to agree that the Federal Communications Commission should not regulate the price broadband access. But the details of any compromise rate legislation could be bedeviling.

Such a bill was one of the subjects of a House Communications Subcommittee legislative hearing last week. Republicans who back the measure — revived two weeks ago as a standalone after it failed to be added as a rider to the omnibus spending bill — pointed out that President Obama and FCC chairman Tom Wheeler had been very explicit that reclassifying broadband Internet access as a common-carrier telecom service under Title II did not mean that Title II rate regulations would be applied.

The bill “seeks to codify the assurances of [Wheeler] by prohibiting the FCC from using its new authority under the Open Internet order to regulate the rates charged for broadband,” Rep. Greg Walden (R-Ore.), the subcommittee chairman, said

House Democrats said they agreed with that notion.

“Let me be clear: I’m not for the FCC regulating the monthly recurring rate that consumers pay for broadband Internet access service,” Rep. Anna Eshoo (D-Calif.), ranking member of the subcommittee, said.

Given that the bill’s language seems pretty straightforward, that sounds like a recipe for bipartisanship — but nothing is ever as it seems in politics. The measure’s language will need more finessing and compromise.

The No Rate Regulation of Broadband Internet Access Act (HR 2666), sponsored by Rep. Adam Kinzinger (R-Ill.) is short — and sweet for ISPs. It consists of only 21 words, minus the parenthetical citing of the Open Internet order: “Notwithstanding any other provision of law, the Federal Communications Commission may not regulate the rates charged for broadband Internet access service.”

So, given the unanimity on rate regulation, what’s the fuss? The problem is with what the bill doesn’t say — or, more specifically, what it does not appear to exclude, said committee Democrats and witness Harold Feld, senior vice president of advocacy group Public Knowledge.

They’re worried that the bill as written is too broad, and could block the FCC from taking enforcement actions against paid prioritization, zero rating plans, interconnection deals or even Universal Service Fund reform. Inaction on all but the last would be fine with most ISPs.

Democrats argue that all of those actions could be seen as regulating broadband prices. Thus, all could be invalidated — or at least called into question — by a law that says the FCC “may not regulate rates.”

Walden signaled last week that Democrats were right to be concerned the bill targeted rate-related enforcement actions.

“Some have been critical of this bill, seeking to change the language to preclude the use of tariff authority — an authority the FCC has already forborne from using — while leaving the commission and its enforcement bureau free to use enforcement authority to regulate rates,” he said in his opening statement. “Rate regulation by after-the-fact second guessing is rate regulation nonetheless. We should ensure that the specter of rate regulation of broadband is off the table, permanently.”

Witness Robert McDowell, a former Republican FCC commissioner and no advocate for Title II, said there could perhaps be an amendment that carves out broadband subsidies under the USF. Feld had pointed out those subsidies might qualify as rate regulations, since they were about lowering the cost of broadband for rural and poorer Americans.

But McDowell also suggested changing the bill to make it explicit that the FCC could not regulate interconnection rates — a nonstarter for some of the Democrats.

So, while everyone agrees on no rate regulation, just what qualifies as rate regulation and what the FCC can do about it continues to divide the committee.

A markup of the bill could come next month, so lawmakers have a few weeks to try and bridge that gap, though it appears to be a wide one.

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.