Net Neutrality Fate in Hands of FCC, Not Congress, Eshoo Says

The net neutrality legislation “keeps in place the rules of the road, if it were adopted, which it will not be,” Eshoo said. “But I think setting a bill down in the Congress of the United States and the form that it is in really reflects millions and millions and millions of people in our country and most frankly around the world that want the Internet to remain accessible and open and free to them. So that’s a very important principle.”

The House version has slowly picked up Democratic co-sponsors since its introduction. Nine Democrats, including Commerce Committee ranking member and bill author Henry Waxman of California, signed on at its outset. That bill is now up to 26 co-sponsors in addition to Waxman. A handful signed on last week and several more this week. New co-sponsors include Reps. Earl Blumenauer of Oregon, Michael Honda of California, and Ben Ray Lujan of New Mexico. The bills have been referred to the Commerce committees. Republicans have long opposed net neutrality rules, and some voiced opposition after this bill was introduced. It has no Republican co-sponsor support.

"This now will be in the hands of the FCC,” Eshoo said. “They have a road map. I think they have a deep and broad awareness of what has made the Internet the powerhouse that it is.” It will be important for the agency to be “cautious” and make sure any new rules withstand judicial challenges, Eshoo said, praising all five FCC commissioners and saying FCC Chairman Tom Wheeler is “skilled” and has a “very full background in this area.”

Other backers of the legislation also want the FCC to act. Five Senate Democrats asked Wheeler to “quickly adopt enforceable rules to prevent the blocking and discrimination of Internet traffic,” they said in a letter sent this week (http://bit.ly/1gusskn). “These rules must stand on strong legal footing to withstand judicial scrutiny. Without such rules in place, Internet Service Providers are prone to act as gatekeepers of the Internet, controlling access by blocking or throttling certain content and thereby limiting the opportunities for innovation, speech, and commerce.” The five senators -- Richard Blumenthal of Connecticut, Al Franken of Minnesota, Ed Markey of Massachusetts, Jeff Merkley and Ron Wyden of Oregon -- all support the Open Internet Preservation Act.

Eshoo sees positive as well as negative in the court decision. She said Verizon had initiated the court case and “did not want the FCC to have any kind of authority in broadband,” contrary to the Communications Act Section 706 broadband authority the court found. She’s “not so much in the weeds” on whether the FCC should reclassify broadband as a Title II telecom service as a means to protect net neutrality, as public interest groups have lobbied for in recent weeks. She simply wants to ensure an open Internet with no blocking and no discrimination: “That’s my overall goal.” And it’s a goal that helps industry, given no consumer is thanking companies for discriminating in or blocking Internet traffic, she said.

AT&T’s sponsored data plan, which lets companies pay for delivery of any data used by AT&T wireless customers on an AT&T 4G network, violates the spirit of net neutrality, Eshoo said, reiterating concerns she offered earlier this year. “It starts splitting up an audience,” Eshoo said. “It’s as if you're breaking down different groups and users and segmenting them. And that’s not what the Internet has been about. And I believe if it had begun that way, it would not be what we know it to be. I understand a company’s interest -- they have to have a bottom line, they have to perform for their shareholders, I understand that. But I think overall in terms of consumers it’s not the track that is attractive to me.” AT&T did not comment and has previously touted its program as a boon for consumers.

Updating the law on retransmission consent can’t wait for any overhaul of the Communications Act, Eshoo said. She introduced the Video CHOICE (Consumers Have Options in Choosing Entertainment) Act in December and wants it to be part of the reauthorization of Satellite Television Extension and Localism Act, which expires at the end of this year. Eshoo criticized the retrans business model, saying it’s not sustainable and demanding a fix. “We could accomplish that with the reauthorization of STELA,” Eshoo said. Rep. Steve Scalise, R-La., introduced the Next Generation Television Marketplace Act on the same day that Eshoo introduced her bill, and it tackles retrans from a different approach but with the same end in mind. “We're working together,” Eshoo said of herself and Scalise. “We have a lot of enthusiasm between us.” Scalise’s office did not comment.

Commerce Committee Chairman Fred Upton, R-Mich., and Communications Subcommittee Chairman Greg Walden, R-Ore., have said they want a clean reauthorization of STELA. Some lobbyists have speculated to us that the Republican proposal of a Communications Act overhaul may be strategically a way to keep STELA free of any bigger legislative changes. Eshoo cited what she called the “excellent relationship” she has with Upton and Walden, one of respect and that has yielded legislation in a dysfunctional Congress. She reiterated her desire to be top Democrat on House Commerce, replacing Waxman upon his retirement later this year. She called House Commerce “the committee of the future,” with broad and powerful jurisdictions, and said, “I have a skill set that fits with that and a leadership style that can leverage that.”

Any update to the Communications Act would likely take a long time, Eshoo said, recalling the “many, many attempts” required to pass the Telecom Act of 1996. House Commerce Committee Republicans said in December they want to update the act, eyeing legislation in 2015. “I'm open to it,” Eshoo said, but given it’s “a long-term effort,” members should “have an appreciation of the things we can accomplish in the short term, and not put them off for seven years or six years from now.” She called any overhaul “a very long, winding road” and said Congress will “need some markers” and to determine “what you want to accomplish” in such an update.

She identified updates to data security, patent and information technology procurement law as other key areas where Congress should place its focus. Any possible merger between Sprint and T-Mobile should be greeted with some concern, Eshoo cautioned. Proposed mergers “all have to be subjected to the scrutiny in the following way -- what produces the most competition in our country?” Eshoo said. “We essentially have a duopoly that operates today relative to communications in our country. How healthy is that? Is that what is best for consumers?”