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Sens. Ask FCC To Ponder Title II

Add Sen. Ed Markey (Mass.), nine other Democratic senators and independent Bernie Sanders to the chorus of critics of FCC chairman Tom Wheeler's draft network neutrality rules.

They suggest that under the Sec. 706 authority the FCC is proposing to use to justify the new rules, the commission will have to allow "substantial discrimination" and should seriously consider classify Internet access as a Title II service.

Wheeler has said that is still on the table. The Senators said the FCC should ask specific questions in the NPRM about Title II.

In a letter sent to the FCC Friday, Markey and company said that they understood the chairman needed to vote on a Notice of Proposed Rulemaking (NPRM) on new rules, which he plans to do May 15, but should do so only if the commission can craft "meaningful rules."

"Sanctioning paid prioritization would allow discrimination and irrevocably change the Internet as we know it," the senators wrote. "Small businesses, content creators and Internet users must not be held hostage by an increasingly consolidated broadband industry," they wrote.

The chairman has explained that the new rules are an effort to restore the old ones using the guidance of the federal court that will have to approve them, and that paid prioritization would be a tough sell under a new "commercially reasonable" standard for discrimination.

But the senators are unpersuaded. "While several posts and statements from the chairman's office offer assurances about your goals, we worry that the NPRM language would permit broadband providers to collect new tolls from innovators, entrepreneurs and all manner of speakers on the Internet."

They suggested that without strong rules against paid prioritization, "big cable companies will not be allowed to end net neutrality and divide the Internet into fast and slow lanes."   They also didn’t seem to see a way to get those rules through Sec. 706 authority.  “The court said that the FCC cannot, under Section 706 of the Telecom Act. The court said that the FCC cannot, under Section 706, adopt rules that resemble ‘common carrier’ requirements to serve everyone. Yet that is exactly want Net Neutrality means: keeping the Internet open to all….We ask you to ensure that the NPRM includes specific questions about Title II and the more robust rules that you could base on this authority.”

Also signing the letter were Ron Wyden (Ore.), Richard Blumenthal (Conn.), Cory Booker, (N.J.), Barbara Boxer, (Calif.), Al Franken, (Minn.), Kirsten Gillibrand, (N.Y.), Jeff Merkley (Ore.), Chuck Schumer (N.Y.) and Elizabeth Warren (Mass.).