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On Eve of Vote, House Republicans, Dems Talk Title II

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."