Republican Internet plans hit interference in Congress

This past week, House and Senate committees held hearings on net neutrality legislation introduced into the House by House Energy and Commerce committee chair, Fred Upton (R-MI), and into the Senate by Commerce committee chair, John Thune (R-SD) .

The bills are designed to head off FCC reclassification of broadband as a Title II telecommunications service. The bills would prohibit the FCC from using either Title II or Section 706 as authority to regulate Internet access services. Rather, the bills would locate that authority in a new congressionally-mandated Title X. The legislation would limit the FCC’s authority over broadband to those actions necessary to protect an open Internet and would prohibit blocking, paid prioritization, and throttling (slowing down) of broadband traffic. It would also permit reasonable network management and “specialized services” such as contractual arrangements between hospitals and ISPs to ensure high-quality transmission of critical medial information.

The fact that the top Commerce Committee Republicans have introduced legislation to protect an open Internet with these provisions shows how far the net neutrality debate has moved since President Obama announced his support for Title II reclassification. FCC Chairman Tom Wheeler has indicated that his rules – to be voted on Feb. 26 – will likely reclassify wired and wireless broadband as Title II service.

The major trade associations representing telecom, cable, and wireless broadband providers have indicated they would challenge any Title II reclassification in court. Communications and Technology Subcommittee Chairman Greg Walden (R-OR) said on the committee website  that the net neutrality legislation would put an end to lengthy court battles and provide the certainty needed to encourage job-creating investment: “We have a duty to those who use the Internet, those who manage the Internet and those who build the Internet to provide legal certainty, consumer protection and clarity for investment. What we are offering is a solution that will bring to an end the loop of litigation and legal gymnastics that has flowed from FCC attempts to shoehorn the policy it wants to fit the authority that it has.”

Proponents of Title II reclassification issued a scathing critique of the House and Senate bills. Senator Ed Markey (D-MA) said:

“This proposal would prevent the FCC from enacting the strongest net neutrality rules, promoting universal service, protecting privacy, ensuring accessibility, and encouraging municipal broadband networks. This is a wish list for the big broadband companies looking to protect their interests and avoid consumer protections.

“Rather than pursuing this damaging legislative proposal, the FCC should use the clear authority granted them by Congress to vote on strong net neutrality rules in February and reclassify broadband under Title II. The future of the Internet as we know it depends on it.”

At the Senate Commerce Committee hearing, Public Knowledge CEO Gene Kimmelmann testified:

“As communication, commerce, and civic engagement increasingly depend on broadband Internet access, it becomes even more critical to ensure that the Internet remains open for all Americans to participate online to the best of their abilities. Fortunately, in Title II, Congress has already given the FCC the flexibility to do just that.”

Moreover, he pointed out that the, “The language of the draft legislation also creates a significant loophole that could allow censorship, surveillance, or other actions that thwart the Internet’s openness under the guise of preventing copyright infringement or any other ‘unlawful activity’.”

The ultimate fate of the bill is unclear as Republicans seek Democratic co-sponsors.

Watch this space.

Amendment to the 1934 Communications Act (U.S. House, Jan., 2015)

Opening Statement of Chairman John Thune (Senat Commerce Committee, Jan. 21, 2015)

House and Senate Begin Review of Draft Legislation to Protect Consumers and the Internet (Senate Committee on Commerce, Science, and Transportation, Jan. 22, 2015)

Markey Decries Republican Net Neutrality Bill as a Wolf in Sheep’s Clothing  (Senator Markey website, Jan. 16, 2015)

Testimony of Gene Kimmelman, President Public Knowledge (Senate Committee on Commerce, Science, & Transportation hearings, Jan. 21, 2015)