WASHINGTON — It is not impossible that a Republicanled legislative effort to pre-empt the Federal Communications Commission from reclassifying Internet access as a common-carrier service before the agency’s planned Feb. 26 vote on new rules will succeed, but the odds appeared long last week.
Cable operators were pushing hard for that outcome through one of their highest-profile advocates, National Cable & Telecommunications Association president Michael Powell (see sidebar), who, as FCC chairman in the early 2000s, concluded that Internet access should be treated as an information service, not a telecommunications service under Title II of the Telecommunications Act of 1996. That conclusion was supported by the U.S. Supreme Court in its 2005 NCTA vs. Brand X Internet Services decision, in which it ruled that cable companies could forbid competing ISPs from using their broadband pipes.
DEMS QUIET AT HEARINGS
But the lack of Democratic support for what was billed as a bipartisan bill was obvious from a pair of hearings on network-neutrality legislation last week that served mostly to showcase key, and still-contentious, issues in the years-long debate over net-neutrality rules, with the draft legislation as the latest flashpoint.
Republican lawmakers in both the House and Senate suggested they were willing to adjust the bill to respond to various Democratic critics, and said their goal was to protect the open Internet and innovation and investment at the same time.
But even Democrats who did not reject the legislative effort on its face suggested it could be on a parallel track to new FCC rules based in Title II, and said the regulator should not wait around for Congress.
Even Powell stopped short of asking the FCC to delay a planned Feb. 26 vote on a new Internet Order, which is widely expected to be based on reclassification of Internet-service providers under Title II rules: Powell’s point was that the chairman gets to set the agenda. That might have been professional courtesy, from a former chairman to current FCC chief Tom Wheeler.
If the FCC does go ahead with the Feb. 26 vote, Wheeler opts for Title II, and if he has at least two other votes — all of which looked likely at press time — the FCC is headed for another court battle.
At both Capitol Hill hearings last week, Meredith Attwell Baker, president of cellphone trade group CTIA– The Wireless Association, used the venue to level an ultimatum. If the FCC goes the Title II route, she said, the CTIA will sue — and it expects to win.
Verizon Communications, a CTIA member, was the only company to sue the FCC over the previous rules. Given the ensuing events, there are likely many ISPs who wish it had kept its powder dry.
Whether or not network-neutrality legislation could actually emerge from both the House Energy & Commerce and Senate Commerce Committee likely hinges on how much both Republicans and Democrats are willing to give.
At the House hearing, Democrats and witnesses favoring strong net-neutrality rules pointed to several problems in the bill, chief among them that it foreclosed Title II and also says the FCC can’t use Section 706 (of the Telecom Act) as a grant of authority.
Democrats argue that is basically a gift to incumbent ISPs, could prevent the FCC from insuring rural broadband rollouts and could prevent the agency from pre-empting state laws limiting municipal broadband.
Republicans didn’t back off from those asks at the hearing, but Rep. Greg Walden (ROre.) did signal he was willing to work with Democrats on the issue of specialized services.
The bill allows for such services, which Powell defended vigorously last week. ISPs charge for delivering services over the nonpublic Internet, something the FCC and even President Obama has said should be allowed. But Democrats argue that the definition is too vague and could become a back door to paid prioritization, something the bill would bar at the front door.
Walden said at the hearing that the committee was not trying to allow something then create a loophole, so he was willing to talk about resolving that issue in the bill language.
On the Senate side — and the House side, for that matter — Democrats were concerned that removing Section 706 as a grant of authority would mean the FCC could not support the migration of the Universal Service Fund to broadband or support municipal broadband.
BOOKER: DON’T TIE FCC HANDS
Sen. Cory Booker (D-N.J.) was adamant that the language tied the FCC’s hands on municipal broadband, something he said was unconscionable given that cities were trying to provide low-cost service for residents, often intended for minority constituents. Booker, himself the former mayor of Newark, N.J., last week announced a bill that would block state laws limiting municipal broadband.
Senate Commerce Committee chairman John Thune (R-S.D.) said the bill presumes that the FCC has ancillary authority to continue to support the Universal Service Fund.
While some Democrats praised the principles behind the bill, that was mostly to be able to add that they were glad Republicans had finally come around to agreeing that the threat to the open Internet was real and that network neutrality rules were needed.
The Democratic support for legislation was only for legislation that would do what most Democrats want the FCC to do: ban blocking and discrimination, paid prioritization and specialized services if they are a stealth attempt at paid prioritization, while preserving the FCC’s authority via Section 706 and Title II, the latter at least as a hammer with which to threaten ISPs into their best behavior.
Powell: There Ought to Be a Law
WASHINGTON — National Cable & Telecommunications Association president Michael Powell made a prolonged pitch for network-neutrality legislation to Congress last week. Here is an excerpt.
“In the absence of a clear Congressional directive, the FCC will continue its attempts to force the round peg of open Internet policy into the square hole of existing statutory frameworks.
“We have already wasted years on protracted court battles, repeatedly failing to come up with a sound legal foundation to support the FCC’s authority to adopt open Internet regulations. And if as it increasingly appears will be the case, the FCC attempts to impose the outdated and heavy handed common carrier obligations of Title II on broadband Internet access services, it is guaranteed that we will waste several more years.
“There is nothing to be gained by prolonged uncertainty, especially when a simpler solution is before us. Even FCC chairman [Tom] Wheeler has suggested that if Congress were to intervene legislatively, it would ‘make the whole lawsuit question moot.’”
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