GOP Net Neutrality Legislation in Crosshairs Ahead of Hearings

Cable and wireless industry leaders plan to throw their weight behind draft net neutrality legislation circulated Friday by top GOP lawmakers (see 1501160048), according to written testimony for congressional hearings on the topic Wednesday. Public Knowledge will say the draft raises a host of concerns and will untenably reduce FCC authority long-term. A senior House Democrat is expected to make the same point.

The White House and Senate Commerce Committee Chairman John Thune, R-S.D., have exchanged letters at odds over the best statutory direction for net neutrality rules. FCC Chairman Tom Wheeler “and I have discussed the benefits that would come from statutory direction clarifying the obligations of Internet Service Providers in our increasingly digital economy,” Thune told the White House in a Jan. 13 letter, calling for “clear and defined authority” for the agency, a way to “avoid legal uncertainty over the FCC attempting to use regulations designed for the monopoly telephone era.” White House Director-Legislative Affairs Katie Beirne Fallon told Thune the White House still backs Communications Act Title II reclassification of broadband, as the FCC is expected to do, and would “strongly support” action to that effect at the agency's Feb. 26 meeting. Reclassification “would be a recognition of the kind of telecommunications service that ISPs provide consumers today,” she said in the administration’s response Friday.

“It shouldn’t be” a contentious fight, Thune told reporters Tuesday. “There’s a place where good people could find some common ground, but it seems like the administration is very dead-set on moving forward and is pushing the FCC to move forward on Title II reclassification." He said Democrats could "work with us to create some bright lines to address the issues that people are most concerned about in that debate, but do it in a way that doesn’t create all the ambiguity that’s going to result as a function of the FCC doing this rather than having Congress do it.”

Thune and his House Republican counterparts will lead separate net neutrality hearings Wednesday. A House GOP memo contends “the draft would change nothing about the current regulation of broadband.”

Eshoo Readies Her Attack

No Democrats back the GOP bill. Commerce member Sen. Maria Cantwell, D-Wash., held a net neutrality roundtable in Seattle Monday, and Cantwell's news release said “some in Congress have introduced legislation that would limit the FCC’s authority to regulate Internet access.” House Communications Subcommittee ranking member Anna Eshoo, D-Calif., plans to attack the draft Wednesday.

It’s “abundantly clear” that the bill is designed “to purposely tie the hands of the FCC by prohibiting them from reclassifying broadband under Title II,” Eshoo will say in her opening statement: “The proposal creates a huge loophole called ‘specialized services.’ On the one hand the proposal says it will prohibit ‘fast lanes’ -- but under ‘specialized services,’ a loosely defined term, broadband providers can give themselves prioritized service, and the FCC will have no power to define this. If our goal is to have a system that guarantees equal access of an open Internet to everyone -- and it should -- who will carry out and oversee this? This proposal carries an enormous bias against enforcement.”

“It’s a draft,” Thune said. “We’re open to feedback, and we’ll take that feedback into consideration. Usually when it’s getting beat up by both the left and the right, it tends to be somewhere close to maybe where we should end up. And that’s kind of what’s happening with the draft. … It would be really nice if we could find a bipartisan approach.” He said he’s not exactly sure when to introduce the bill formally but “it won’t be too far down the road.”

“We would love to see [the draft's critics] come to the table,” Thune said. “We’ve tried to engage them. We’ve had conversations, reached out to Chairman Wheeler, reached out to the administration … and we’ve reached out to Democrats up here, too [in both chambers].”

CTIA, NCTA Supportive

Some industry leaders plan to praise the draft at the Wednesday hearings. The draft's release also prompted a deluge of commentary from conservative observers pressing the legislative route (see 1501200058).

The draft "achieves the aims of every stakeholder in the Internet ecosystem,” NCTA President Michael Powell, will tell the House Communications Subcommittee at its 10 a.m. hearing. NCTA has lobbied against reclassification. “The Committee’s proposal to enact bipartisan legislation is a much-needed alternative to this harsh result,” Powell will say of the expected resulting litigation from ISPs. “Instead of leaving the FCC to find statutory authority in existing provisions of law, we must work together to craft new legislation that establishes unambiguous rules of the road for ISPs while also clearly defining the parameters of the FCC’s authority.”

“The draft bill is an excellent start and offers a reasonable path toward ensuring the preservation of an open Internet with real, enforceable requirements,” CTIA President Meredith Baker plans to say at the same hearing. “Properly crafted legislation will guarantee the protections the President has called for and would allow mobile broadband providers to continue to invest billions, create jobs, and bring innovative products to all Americans.”

Midcontinent Communications also backs the draft, Senior Vice President Tom Simmons will tell Senate Commerce. “Many of the draft’s obligations reflect the business practices of most ISPs today,” Simmons will testify. He plans to argue it’s “demonstrably false” that reclassification would be an easy path without burdens. The Telecom Industry Association, which isn't testifying, sent a letter to Capitol Hill Tuesday praising the effort and urging congressional resolution. TIA slammed reclassification.

Baker, Amazon Vice President-Global Public Policy Paul Misener and Minority Media and Telecommunications Council Vice President Nicol Turner-Lee are to testify at both the House hearing in 2123 Rayburn and the 2:30 p.m. Senate Commerce Committee hearing in 253 Russell.

The draft, “unfortunately, resembles the catastrophically unsuccessful Cable Act of 1984,” Public Knowledge President Gene Kimmelman will tell Senate Commerce. “Like the Cable Act of 1984, it has elevated ‘certainty’ over flexibility and focused on today’s headlines rather than on timeless fundamental principles.” Kimmelman will outline core concerns, such as why the FCC needs flexible rulemaking authority and why the ban on prioritization deals was never the sole net neutrality concern. The draft could allow for censorship and surveillance, Kimmelman will warn.

The draft “suffers from a number of fatal flaws that could permanently debilitate the FCC,” National Hispanic Media Coalition General Counsel Jessica Gonzalez plans to testify at the House hearing. It “blesses some forms of discrimination and strips the FCC of authority that could be used to achieve shared policy goals, such as universal service, rural access, accessibility for persons with disabilities, public safety, consumer privacy, and others” and lacks the right enforcement tools, she will say. Amazon’s Misener will caution that it has sections that “could be interpreted to undermine that effectiveness” required in net neutrality rules. The specialized services provision “could create a huge loophole," allowing for paid prioritization, Misener will say. Other language “should be amended to ensure that the FCC retains its Title II tools,” he will say.

Etsy CEO Chad Dickerson thinks the draft “would remove FCC authority to address new, as-of-yet-unanticipated types of discrimination,” he will tell the House, also noting the language limiting Telecom Act Section 706 “would undermine the agency’s ability to promote rapid broadband deployment across the country, particularly in rural areas, where the Internet allows entrepreneurs to reach a global marketplace.”