INTX 2016: Hill GOP Aides Hammer FCC

Top aides to the Republican leaders of the primary House and Senate communications oversight committees and subcommittees took turns taking aim at what one called the "troika" of FCC regulatory interventions--set-tops, business broadband, and broadband privacy, as well as the parent of some of those problems, Title II reclassification.

The lone Democrat on the dais did indicate his boss, Rep. Frank Pallone (D-N.J.) supported applying a consistent broadband privacy regulatory regime to ISPs and edge providers.

That came in the INTX 2016 session "Enacting the Future: The State of Communications Policy in Congress" on Monday.

Related: INTX 2016—Powell Says FCC Has Launched Unprovoked Regulatory Attack

The panel featured Grace Koh,deputy chief counsel for the House Energy & Commerce Committee; David Quinalty, policy director at the Senate Commerce Committee; and Gerald Leverich, Democratic counsel to E&C, though Koh and Quinalty dominated the discussion as they slammed FCC proposals.

Mitch Rose, senior VP of government relations for NBCUniversal, moderated the session.

On network neutrality and the FCC's Open Internet order, nobody was ready to predict how the federal court would come down to the ISP challenge to the new rules, though all three of the aides said their bosses were interested in a legislative solution that would clarify the FCC's authority.

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Quinalty said that regardless of how the court rules, the issue would not be settled until Congress finds a bipartisan solution that protects the Internet with both clear and flexible legal authorities.

He said his boss, Senate Commerce Committee Chairman John Thune (R-S.D.), had worked with ranking member Sen. Bill Nelson (R-Fla.) to craft a compromise, but that it was not clear that will be what happens. He said the FCC made it tough by reclassifying under Title II rather than waiting and let Congress try to strike a deal before lighting a match to that fuse.

Leverich said Rep. Pallone also backed a legislative solution, but that it would have to be one that was consumer-focused. But he suggested what happened next, if anything, in Congress depended on what happened in court.

Related: Barton, DeGette Concerned About Set-Top Proposal

Koh did not appear to be feeling the bipartisan love from her vantage. She said her bosses had been very vocal in asking their Democratic counterparts to come to the table and work with them on legislation, "but so far we have not had any takers." She also said she thought the FCC move to Title II before Congress could weigh in was the culprit.

As did NCTA President Michael Powell in his opening remarks, Rose pointed to the groundswell of criticism of the set-top proposal, also citing the 150 members of Congress who had expressed their concerns. "You can barely to get 150 members of Congress to agree on naming a post office anymore," he said.

On set-tops, Koh called it an ill-conceived, and ill-founded proposal with conclusions unsupported by evidence and that may not have been arrived at "in the fairest way."

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Quinalty echoed criticisms by Powell that the FCC is regulating for an old marketplace instead of aiming at the new one. He was also concerned that the FCC was interpreting a technology mandate to apply to apps, and asked why that could not be extended to regulating non-traditional, over-the-top providers. He said that as troubling as this proceeding was, it was the next regulations that could be even more dramatic.

While Leverich did not provide much input on set-tops, he had plenty to say about the FCC's broadband privacy proposal.

The Republican aides criticized the FCC for treating ISPs and edge providers differently, essentially regulating the first and not the second. But while they suggested the FCC should take a lighter touch, Leverich said his boss would prefer that the playing field be leveled by applying strong consumer protections on both, either by giving the FTC rulemaking authority, or removing the common carrier exemption which transferred broadband privacy authority--Quinalty said the FCC stole it--when the commission reclassified ISPs under Title II common carrier regs.

So, said Rose, Rep. Pallone wants to apply regs to both MVPDs and the edge. "Yes," said Leverich, lifting the common carrier exemption would do both.

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.