Net Neutrality's Title I vs. Title II Digital Divide Remains

The new Democratic-led House Communications Subcommittee weighed back into the still legally muddy net neutrality waters Thursday (Feb. 7), led by chairman Mike Doyle, who led the unsuccessful House effort to follow the Senate and nullify the net neutrality reg rollback under current Republican chairman Ajit Pai.

The main takeaway from the hearing was that both sides of the aisle sounded like they were looking for a way to "yes" on bipartisan legislation to restore FCC rules against blocking, throttling and (anti-competitive) paid prioritization as a way to provide certainty for consumers and broadband investment, but that the Title II vs. Title I digital divide appeared to be as wide as ever, threatening that bipartisan spirit.

Republicans talked up at least three legislative proposals that would restore the rules, but not under Title II, including legislative proffers from Rep. Greg Walden (R-Ore.), Rep. Bob Latta (R-Ohio), ranking member of the subcommittee, and Rep. Cathy McMorris Rogers (R-Wash.), that would restore rules under a non-Title II framework.

Net neutrality activists monitoring the hearing quickly fired off e-mails shooting them down as fake bills backed by "telecom shillls."

There was also talk at the hearing of creating a new title of the Telecommunications Act that would backstop rules. 

The change in political fortunes was evident in the hearing witness makeup, with four of the six witnesses clearly in the strong net neutrality rules camp, including former FCC chair Tom Wheeler, whose Open Internet order the Pai FCC reversed, and Denelle Dixon, COO of Mozilla, the lead petitioner in the legal challenge to the Pai-led rule rollback.

Related: Mozilla: the Net Neutrality Buck Stops at ISPs

They were joined by actress Ruth Livier and Free Press VP Jessica Gonzalez, both arguing for strong net neutrality rules.

On the other side were Michael Powell, himself a former chairman and now president of NCTA-The Internet & Television Association [Wheeler, now a fellow at the Brookings Institution, was also once head of NCTA] and Joseph Franell CEO and GM of Eastern Oregon Telecom, wearing his "information services" hat since his argument was that broadband access should remain a Title I information service.

Latta said he saw plenty of room for consensus, and said it was necessary so that Congress could focus on closing the digital divide for their constituents. He said he hoped this year would finally be the one where they came together and that Powell's network neutrality "four freedoms" from back in 2004 should inform that consensus. 

But while there was talk of consensus, there was plenty of tough talk as well. 

For example, there was a tense moment when Rep. Jerry McNerney (D-Calif.) asked Powell whether NCTA had engaged Broadband for America (NCTA is a member) to pay outside parties to file fake comments in the FCC net neutrality docket using stolen identities. A stern Powell said absolutely not. McNerney paused and said: "We will be looking into that, Mr. Powell," leaving the not-quite-an-allegation hanging in the air. He then asked Powell and Gonzalez whether either of their organizations or staffers had filed such fake comments. They both said no.

That line of questioning stemmed from subpoenas to both Broadband for America and Free Press as part of an investigation into the fake comments in the net neutrality docket.

Rep. Frank Pallone (D-N.J.), chairman of the parent House Energy & Commerce Committee, said he also hoped for bipartisan consensus, but laid into ISPs as slowly changing the internet now that they were free of bright-line rules against blocking, throttling and paid prioritization--citing reports of carriers slowing access--He suggested the pace of the post-dereg remake was because a court had yet to decide whether the net neutrality rule deregulation should stand, and Congress was watching closely the new regime. But he said he shuddered to think what ISPs will do in the future given ISPs' history was "chock full" of bad behavior. 

Gonzalez talked about the government's long and sordid history of using the media to legitimize "the enslavement of Black people, and the genocide and displacement of Native peoples," and that the FCC's net neutrality rules were an exception to its failure generally to come up with remedies of structural racism in the media and communications sectors.

Livier said that traditional media have "largely misrepresented, symbolically annihilated, and/or positioned as peripheral characters in someone else’s story" the Latinx communities while the free and open internet has allowed her to give them a voice.

Pallone and former House Energy & Commerce Committee chair Greg Walden (R-Ore.) were in agreement on the White House not unduly influencing the net neutrality outcome, but diverged in their examples on where that might have happened.

Pallone said that the Trump Administration appeared to have made its mind up about removing the regs, and that FCC chair Ajit Pai essentially executed an informal executive order to that effect.

Walden pointed out that the Wheeler FCC's first choice was not Title II-based regulations (Wheeler was seen shaking his head as though that were not quite the case), but President Barack Obama's video advocating for Title II changed the trajectory of that item. 

Wheeler and Powell were definitely on different sides of the issue. Powell said that Title II should be a nonstarter in any bipartisan solution while Wheeler said that his 2015 Title II-based order should be the starting point.

Powell said that new rules should be derived "from a clean sheet of paper up," rather than "the historical mountain of Title II down."

Rep. Doyle appeared to be trying to get Dixon to talk about why Title II was necessary, asking if bright-line rules alone were enough. But Dixon spoke to the need for the rules, rather than their legal underpinning. Doyle then turned to Wheeler, pointing out that the FCC had not applied most of the Title II regs, the point being that it was a Title II "lite" version that was not the threat that those who have talked of the 1,000 Title II regs suggest it is. 

Walden pointed out that a future FCC could change its mind and un-forbear some of those Title II rules, which Powell agreed could be problematic. 

Latta then turned to Powell for his view.  Powell said that the flourishing of Mozilla came when there were no rules against blocking, throttling and paid prioritization. And he said it was a misnomer that ISPs don't have a business interest in an open internet. 

Powell said NCTA supports codified rules along the lines of Wheeler's 2015 order that can be enforced and that the only thing it objected to was Title II. He said Wheeler's problem had been trying to find the jurisdictional hook for those rules, while Congress can provide that hook without Title II.

Asked how Powell had gotten consensus on his open internet freedoms, he said that they were trying to give regulatory voice the engineering concept that the 'net was already open and not centrally controlled.

Wheeler said that saying they were for an open internet must not Title II was like saying they were for justice, just not the courts that enforce them.

Pallone suggested that the current bright-line rules are not enough to deal with things yet undreamed of, which is why Wheeler's general conduct standard was important. 

Wheeler agreed, saying that Powell's principles are just that, and that the rules against blocking, throttling and paid prioritization are limited and don't reach to that other, potential conduct, in a world quite different from the one in 2004.

Rep. Anna Eshoo (D-Calif.), former ranking member of the Communications Subcommittee, said she wished she agreed with Powell and that their friendship would survive the net neutrality debate, but she has not changed her mind about Title II. She said 
Title II had been beaten to a pulp, then suggested it was hardly the menace it was being made out to be. 

Eshoo said the industry was behaving itself, but suggested that was only while the court was deciding deregulation's fate.

Franell said that the biggest issue for his company has been Title II. He said he could not get loans from the banks during the Title II era, and only when the new FCC signaled Title II was on the block that cash flow was freed up and investor interest returned. s a result, he said, he was able to provide new service to underserved communities for which that service could be life-saving.

Frannell said Title II is a bad idea, but non-Title II-based rules would also provide a level playing field. He said he thought that whatever would provide a free and open internet was the goal, which would include the browser and content folks. He said there needed to be clear boundaries on behavior across the internet so users have confidence they can get where they want to go. He talked of the pro-social benefits of prioritization, saying he would like to be able to prioritize 911 calls, but that Title II means someone will get mad at him or he will "wind up before Congress."

Frannell also said that while he took to the local newspaper to talk about the fact that they were not going to manipulate traffic, the reaction was irrational and visceral, which was a problem because his business is built on relationships. 

Rep. Walden pointed out that edge providers are under the spotlight and asked Powell whether they should be included in any new rules. Powell said yes, citing Apple blocking Facebook applications and Twitter blocking speakers they disagreed with, and Facebook prioritizing news feeds, and Google charging for ranking search. He said net neutrality would be a hollow promise without that parity.

Rep. John Shimkus (R-Ill.) pointed out that the President would not sign a Title II-based bill, so they needed to find a middle ground. He said that there has to be incentive to lay fiber. He said he hoped they would get through the emotion--Title II vs. Title I passions running hot, for example--to a solution. "I just hope we get there."

Shimkus talked about The Wall border issue and Dems suggestion of a smart wall with drones. He said if they wanted to stop coyotes from crossing the border, should that info be prioritized. Powell said public safety is why they should be careful about what they meant by prioritization. Wheeler pointed out that the 2015 rule allowed for that public safety prioritization Rep. Dave Loebseck (D-Iowa) said he had some faith in getting to a bipartisan solution. He said rural broadband buildouts are crucial and asked Wheeler how important net neutrality was for smart agriculture. Wheeler said someone is going to control whether that capability gets to the field. So, if you only say you can't block, throttle or prioritize in new rules, ISPs can do anything else they can envision to advantage themselves. 

While the FCC has said that deregulating internet access will boost rural broadband buildouts, the lack of accurate maps of where broadband is makes it hard to figure out where to do that, an issue raised by several legislators.

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.