Waxman Plugs Sc. 706/Title II Hybrid Net Neutrality Rules

House Energy & Commerce Committee ranking member Henry Waxman (D-Calif.) is pitching FCC Chairman Tom Wheeler on a hybrid Title II/Sec. 706 approach to reconstituting network neutrality rules.  

The proposal is targeted to an Oct. 7 FCC network neutrality forum on "new ideas for protecting and promoting an open Internet," which will consider hybrid options, among others.

In a 10-page letter to Wheeler, Waxman, who is retiring at the end of this session, suggested reclassifying Internet access under Title II regulations, then using Sec. 706 authority to establish bright-line rules banning blocking, "throttling," and paid prioritization.

“Using a combination of reclassification under Title II and section 706 would give the FCC broad authority to establish strong rules to protect the open Internet," he said. "This approach can produce the bright-line protections that advocates are seeking while avoiding the invocation of the Title II authorities most strongly opposed by the broadband providers."

Waxman wants those bright line rules, but says the problem is that the court has pointed out that outright bans can not be applied unless ISP's are classified as telecommunications services subject to Title II common carrier regs.

But he also has concerns about relying exclusively on Title II. Some opponents of Title II point out that it would not ban paid priority because sec. 201 and 202 allow for differentiated service and pricing under reasonable terms and conditions, so Waxman would have the FCC forbear--not apply--those. The FCC would wind up forbearing most of Title II under the Waxman plan, similar to a suggestion from Rep. Anna Eshoo (D-Calif.), ranking member on the Communications Subcommittee.

He says that forbearance would assure ISPs the FCC was not going to regulate rates.

Rather than having to choose between sec. 706 and Title II, neither of which does the job alone, the FCC should use both authorities at once, he says.

No blocking, he explains, would prevent broadband providers from stopping the transmission of lawful traffic; a new, "no throttling," rule would prohibit slowing or degrading lawful traffic on the basis of content, applications, services or devices; and no paid prioritization would prohibit broadband providers from "entering into pay-for-play schemes with content providers and bar the use of access charges for the purpose of obtaining preferential treatment, including faster speeds or other favorable terms and conditions."  "No blocking" and "No throttling" would be subject to reasonable network management exceptions.

Waxman says uniformly applied data caps would be OK under the "no throttling" rule.

He argues for applying the regime to wireless as well as wired broadband, something the wireless industry generally opposes. But he says there should be a different interpretation of reasonable network management that accounts for the wireless industry's "unique bandwidth management challenges." He said he sees no reason why mobile nets would need to block or throttle content outside of that reasonable management carve-out.

Waxman said the FCC should have a waiver process for ISPs. He says he doubts those would be in the public interest since preventing blocking and throttling and paid prioritization are "the heart of an open Internet." But he concedes that the Internet is "dynamic" and that "it could be valuable to allow broadband providers to seek waivers or permission to conduct trails if the providers can demonstrate that a prohibited practice actually furthers the goals of Sec. 706." That is the congressional mandate that the FCC insure that advanced telecommunications are being deployed to all Americans in a reasonable and timely fashion.

The current FCC proposal for reinstating new network neutrality rules thrown out by the court would use Sec. 706 to restore no-blocking and no-unreasonable discrimination rules. It would permit commercially reasonable discrimination beyond a guaranteed baseline of service, though FCC Chairman Tom Wheeler has signaled that he doesn’t think that anticompetitive paid priority would pass muster under that commercially reasonable standard.  But Wheeler has also said Title II is on the table, and is being pressured by net neutrality activists to take it off the table and put it into the rulebook.

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.