Boucher, Stearns Want Congress in Charge of Net Neutrality

"The FCC has done a reasonably good job in its reclassification with the tools it has available,” said Boucher at the CCIA event. “But I honestly think in the end a far better approach is for Congress to address this subject.” Government should act to “preserve network neutrality,” but avoid rules “that are so heavy-handed, that they have the effect of inhibiting investment in broadband facilities.” Broadband providers and Internet companies who support neutrality should engage Congress “on how we could structure a targeted set of provisions” that strikes the right balance, he said. Boucher has talked with House Commerce Chairman Henry Waxman, D-Calif., and “he’s of the same mind,” Boucher said.

It’s better for Congress to do net neutrality because “we can have a far better targeted set of legislative principles that are specifically designed to ensure network openness and at the same time not inhibit investment,” Boucher told reporters afterward. “The FCC under Title II is simply not in a position to do it with that level of precision.” Boucher hasn’t talked to the FCC about it, he said.

The subcommittee and the House Commerce Committee must assert itself before the FCC moves ahead, Stearns said at the hearing. The next step is to bring in the FCC for a hearing, he said. In moving to reclassification, it looks like Genachowski was pressured by the executive branch to fulfill President Obama’s campaign process for net neutrality, Stearns said. The FCC has “definitely encroached” on Congress’s arena, agreed Rep. Lee Terry, R-Neb. For Terry, there’s no difference between a “heavy” or “light touch,” he said. “Congress needs to stand up, take back its power from the FCC, and deal with this issue.” Rep. Marsha Blackburn, R-Tenn., said she’s “excited to explore what the FCC could possibly be thinking."

But some legislators doubt Congress can move as fast as the FCC to make net neutrality rules. “I don’t think that Congress will act before the FCC acts,” Sen. Byron Dorgan, D-N.D., told reporters after remarks at the CCIA event. He backs Genachowski’s reclassification plan, he said. “I would support Congress doing something on this,” but “I just think it’s unrealistic to believe that between now and the end of the year, Congress is going to act on a piece of telecommunications legislation that’s controversial."

"I don’t want to see this become tangled in the tall weeds for years to come,” said Rep. Anna Eshoo, D-Calif. “America can’t wait for this.” Genachowski’s “light touch” approach is on target, “and I don’t think it’s necessary for Congress” to take the lead, she said. “Should we be engaged in this? Of course we should. There should be a very close examination of it so that members not only understand it, but … are able to embrace it."

Boucher believes Congress could finish legislation “in a matter of months” if industry consensus is found, Boucher said. “If there’s not consensus, we're not going to be able to act at all, not even within four or five years.” Boucher has been discussing areas of consensus with both sides of the debate for six years, so the time is ripe for a consensus plan, he told reporters later. “It’s really in the hands of the broadband providers."

Dorgan agrees with Boucher that “we don’t need to have a big fight” over net neutrality, the senator said in remarks at the CCIA event. He urged stakeholders to find ways to “come together” and help the FCC make good rules, he said.

Rep. Mike Honda, D-Calif., used perhaps the most colorful metaphor of the day at the CCIA event. Telling a Red Hat executive about his views on net neutrality, Honda said that unless the principle is enforced, “the esophagus of our country is going to be choked up.” As with “obstructive sleep apnea … you're not going to be real healthy” without anti-discrimination rules for the Internet, he said.

Congress must “move ahead with broadband policy,” Sen. Amy Klobuchar, D-Minn., who chairs the Commerce Competitiveness Subcommittee, said at the CCIA event, while praising the FCC’s work and promising to work with the commission on expanding access. Lawmakers will consult industry voices, Klobuchar said, mentioning that at a recent hearing about cellphones, she had joked to Sen. Mark Warner, D-Va., an early investor in Nextel, “What the hell do you know about this?"

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Lawmakers broached other subjects at the CCIA event. Boucher said his privacy bill will likely be edited and introduced in the first week of June. Meanwhile, those interested should weigh in, he said. “I intend to take these comments very seriously” and call back those with concerns, Boucher said. He said the bill isn’t meant to inhibit commercial advertising but rather to ensure that advertisers follow “best business practices.” Ad networks are “now a deeply embedded aspect” of targeted advertising, “and we respect that” in the bill, Boucher said.

Boucher and Dorgan complained about Sen. Tom Coburn, R-Okla., who’s blocking passage of a spectrum inventory bill (S-649) in the Senate. No one opposes an inventory, Boucher said: Coburn “has a hold on everything.” Quoting Winston Churchill, he added that the Senate is a “mystery, wrapped in an enigma, surrounded by uncertainty.” Coburn “has a hold on everything these days,” agreed Dorgan. “It’s very hard to get much of anything done.” But that shouldn’t “deter us from getting good public policy,” he said.

Eshoo hasn’t heard major complaints from Silicon Valley about financial revamp legislation, she told reporters. Some trade groups representing IT, telecom and Internet companies have voiced concerns that legislation being considered by Congress may be too broad and provisions in the House bill could significantly expand the FTC’s rulemaking authority (CD May 5 p6). There have been some “individual cases, but I have not heard any outcry from Silicon Valley that the Congress is way off track on Wall Street reform,” Eshoo said. Most recognize its importance, she said. No bill is supported by everyone, she added.

Eshoo said she wishes a cybersecurity czar had been in place from “day one.” The president named Howard Schmidt cybersecurity coordinator in December. “Can the person play catch up? I sure hope so, because we have threats and they need to be addressed.” Companies are “reluctant” to report cyberattacks because there’s a “maze of agencies,” she said. Government should more effectively encourage businesses to come forward, Eshoo said.

Klobuchar pitched her peer-to-peer software regulation bill as an educational measure that will strengthen cybersecurity, a topic she said she hears about regularly from military leaders in closed Senate Intelligence briefings. Klobuchar promised to look into the Anti-Counterfeiting Trade Agreement, after being told by intellectual property lawyer Jonathan Band that concerns about secondary liability and damages provisions in the agreement were “falling on deaf ears” at the U.S. Trade Representative’s office. (See separate report in this issue.)