FCC Net Neutrality Proposal Stirs Concerns in Congress
Recent controversy on net neutrality created anxiety and questions for top lawmakers on Capitol Hill this week, they said in interviews at the Capitol Tuesday. Last week, the FCC announced next steps to create net neutrality rules that would create what some call “Internet fast lanes,” with allowance for what the agency is terming “commercially reasonable agreements” between Internet service providers and online content distributors. That notion, during last week’s congressional recess, set off a firestorm of statements and opposition from both Democrats, who worry these proposed new rules are far too weak, and Republicans, who oppose any net neutrality rules.
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The U.S. Court of Appeals for the D.C. Circuit struck down the agency’s 2010 net neutrality rules in January, and FCC Chairman Tom Wheeler committed to coming up with new rules consistent with the court’s ruling. Republicans are “not in favor of net neutrality” rules at all, Senate Commerce Committee ranking member John Thune, R-S.D., told us. “We don’t think they ought to do anything.”
"I'm for an open Internet, but Tom Wheeler knows what he’s doing,” Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., said in an interview at the Capitol Tuesday. “He’s a good operator. He’s experienced. So I look for good things from him."
"The question is going to become how they define what that threshold is for ‘commercially reasonable,'” Thune said. “They still have to issue rules around it. But it strikes me, at least, until we know a little bit more about how they intend to define that, it’s hard to react one way or the other. ... They had to do something to change what they'd issued before to comply with the court order. So they couldn’t come right back and come out with the same thing. But it seems to me, at least, we're still taking a look at this, but there’s a lot of interpretation still that we're going to have to await to see exactly how they're going to define and interpret what ‘commercially reasonable’ is.”
Thune has concerns over “how vague that terminology” may be, he said: “This looks to me, at least, like an attempt to come up with a position that complies with what the courts have said regarding where they were headed, but still creates a certain amount of ambiguity until they clarify further what that means.”
Rockefeller was “distressed” that the court “didn’t give us all that we wanted” in affirming net neutrality, he said. The ruling affirmed that the FCC has Communications Act Section 706 authority over broadband but struck down the agency’s rules themselves. Public interest advocates have strongly campaigned for the FCC to reclassify broadband as a Title II service, subject to common carriage regulations -- a key dissonance in the 2010 rules the court pointed to. Wheeler, given his expertise, is poised to “make the most” of what the court “left us,” Rockefeller said.
"I am concerned,” Sen. Richard Blumenthal, D-Conn., told us of the proposed rules before heading into a Tuesday lunch with Senate Democrats. “I'm concerned about the direction that the FCC may take. ... I'm going to be talking with my colleagues about it. ... I'm going to be pursuing the objectives of net neutrality, possibly through a meeting with the chairman and other steps.”
Sen. Tom Udall, D-N.M., didn’t weigh in on the specifics of the new rules but emphasized his support for the concepts. “I'm for net neutrality -- you can count on that,” Udall told us. Other Democrats indicated they're following the matter. Sen. Cory Booker, D-N.J., nodded vigorously in the affirmative when asked about his many recent tweets slamming the “Internet fast lanes” proposal, though referring further questions to his staff. Sen. Bill Nelson, D-Fla., a senior Commerce Committee member, said he has followed the debate “tangentially” and intends to get caught up after traveling during congressional recess.
The FCC has vehemently defended this proposal as retaining the agency’s commitment to the open Internet. The agency plans a “high bar” for these commercially reasonable agreements, and it’s “unfounded” to say the rules would lead to anticompetitive price hikes for consumers, Wheeler said in a blog post Thursday (http://fcc.us/1ii6MfR). President Barack Obama has touted the issue as a key political objective, including earlier this year after the court struck down the agency’s rules. Obama “strongly supports net neutrality,” a White House spokesman told us Tuesday by email. “The FCC Chairman has said that his goal is to preserve an open internet and that he has all the tools he needs to do it. We have been clear from the start that we support that goal and will be closely following these developments as the FCC launches its proceeding."
Free Press, a loud opponent of the proposed rules, wrote a blog post this week pointing to all the lawmakers who have issued statements and tweets of concern over the rules (http://bit.ly/1iyYsr6). Free Press tallied concerns from Sens. Kirsten Gillibrand, D-N.Y.; Booker; Oregon Democrats Ron Wyden and Jeff Merkley; Blumenthal; Ed Markey, D-Mass.; and Bernie Sanders, I-Vt. Consumer advocates, in their loud, rapid opposition to the forthcoming proposal, have told people to reach out to their members of Congress. “First, call your Senators and Representatives and tell them you want the FCC to classify broadband Access as a ‘Title II telecommunications service,'” Public Knowledge Senior Vice President Harold Feld said during a Reddit chat last week (http://bit.ly/1id8Yo0). “These are the magic words that -- under the Communications Act -- let the FCC tell companies ’this is like a telephone call, between the people involved, not something you get involved in -- you are hired to move the information, not mess with it.'”
House members expressed similar concerns. Minority Leader Nancy Pelosi, D-Calif., outlined fears, even urging people to contact the FCC backing strong net neutrality rules. House Commerce Committee ranking member Henry Waxman, D-Calif., said last week that he spoke with Wheeler and said he has the “right goals.”
Wheeler’s proposed roles would “destroy” the open Internet, Sen. Al Franken, D-Minn., chair of the Senate Judiciary Privacy Subcommittee, told Wheeler in a letter Tuesday (http://1.usa.gov/1kk8bj0). “By creating a ‘commercial reasonableness’ rule, the Commission would be formally sanctioning the very deals it sought to combat less than three years ago,” Franken said. “Struggling to craft a ‘commercially reasonable’ standard misses the point: Pay-to-play arrangements are inherently discriminatory and anticompetitive, and therefore should be prohibited as a matter of public policy. They increase costs for consumers and give ISPs a disincentive to improve their broadband networks -- undermining the FCC’s mission to protect the public interest and strengthen the nation’s broadband infrastructure.”
Blumenthal, Franken, Markey, Merkley, Udall, Sen. Elizabeth Warren, D-Mass., and Wyden all signed onto the Open Internet Preservation Act (S-1981) in February, which proposed reinstating the 2010 net neutrality rules as the agency crafted new ones.