Title II Reclassification Debate Reaches Fever Pitch on Capitol Hill

Top Republicans bashed the idea of “old-fashioned” Title II reclassification. “Such unwarranted and overreaching government intrusion into the broadband marketplace will harm consumers, halt job creation, curtail investment, stifle innovation, and set America down a dangerous path of micromanaging the Internet,” said a Tuesday letter to the FCC from House Commerce Committee Chairman Fred Upton, R-Mich.; Vice Chairman Marsha Blackburn, R-Tenn.; Communications Subcommittee Chairman Greg Walden, R-Ore.; and Subcommittee Vice Chairman Bob Latta, R-Ohio (http://1.usa.gov/1gkLy15). The FCC should close the Title II docket and no longer consider the possibility of reclassifying, they told the agency.

Senate lawmakers called the NPRM “corrosive,” opposing any net neutrality rules but expressly saying in a different letter sent Tuesday that reclassification would “create tremendous legal and marketplace uncertainty,” (http://1.usa.gov/1mngspB). That letter was signed by Senate Minority Leader Mitch McConnell, R-Ky.; Republican Whip John Cornyn of Texas; Senate Commerce Committee ranking member John Thune, R-S.D.; Republican Policy Committee Chairman John Barrasso of Wyoming; Republican Conference Vice Chairman Roy Blunt of Missouri; and National Republican Senatorial Committee Chairman Jerry Moran of Kansas.

Sen. Ted Cruz, R-Texas, began circulating draft legislation that would modify Section 706, which grants the FCC authority over broadband -- an authority that some Republicans have cautioned may be too broad in scope. Section 706, according to the draft text, would be modified by striking a subsection reference to “price cap regulation” and adding “measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment” and in another subsection, striking “'removing barriers’ and all that follows and inserting ‘pursuing regulatory forbearance,'” said text circulated among industry officials. Cruz “has serious concerns about the course the FCC is pursuing on net neutrality and on the questionable authority on which it’s relying,” his spokeswoman told us of the draft bill text. “He is exploring legislative options to preserve the freedom of the Internet to remain an engine for jobs, growth, and opportunity, and we have been in touch with other offices to that end."

Green Opposes Title II

Rep. Gene Green, D-Texas, is circulating a letter backing net neutrality but relying on Section 706 authority, as the agency had done in its vacated 2010 rules and tentatively intends to do now, his office confirmed. Green and “and many other Members of Congress do not believe that reclassifying broadband Internet access service as a ‘Title II’ common carrier service is the best path forward for achieving this for several reasons,” his office told us. “Some critics want the government to impose archaic utility-type ‘common carrier’ regulations on the broadband Internet.” Title II reclassification, “an outdated, discredited idea,” may “force broadband providers to allow ‘competitors’ to use their networks at heavily discounted, government-set prices, rather than investing in their own competitive networks” and would “hurt innovation and investment and mire this critical sector of our economy in endless regulatory and judicial disputes,” Green’s office said.

Green’s draft letter urges FCC Chairman Tom Wheeler “to consider the effect that regressing to a Title II approach might have on private companies’ ability to attract capital and their continued incentives to invest and innovate, as well as the potentially negative impact on job creation that might result from any reduction in funding or investment,” said a copy Free Press posted on its blog (http://bit.ly/1nFZEd0). “I share your goals of keeping the Internet open to all. I do not believe that a Title II approach is the best means of achieving this goal for our country.”

Free Press blamed the letter on NCTA lobbying and posted a copy of an email from Tom Downey, a lobbyist with the Downey McGrath Group who was formerly a Democratic representative from New York, to Capitol Hill offices. “While longtime industry buddy Rep. Gene Green is nominally circulating the letter, it’s the cable lobbyists who are doing the real legwork,” Free Press President Craig Aaron said in the blog post. “The cable industry has called the shots on Capitol Hill for too long.” Aaron urged people to call their representatives to slam the letter and urge them not to sign it.

NCTA backs “an open Internet, but many of its most vocal advocates are employing aggressive tactics and misinformation to try and bully the FCC into the radical and unwarranted step of reclassifying broadband into a Title II public utility,” a spokesman told us when asked about the letter. “Such a step would be devastating to the United States. The harm to investment would be substantial; limiting the hopes of getting broadband to every American, slowing the growth of broadband speeds, and impeding efforts to improve adoption. Given the ruinous consequences of such a fateful step, we are making our views known as widely as possible."

Reclassification a ‘Legitimate Ask'?

The Congressional Progressive Caucus, meanwhile, is spearheading a letter pressing for the FCC to reclassify, with more than a dozen names attached, according to a Dear Colleague letter circulated among lawmakers earlier this week (CD May 13 p6). “Our understanding” is that Green “may only have like six or seven people on their letter,” one Democratic staffer with the Congressional Progressive Caucus told us, saying Green’s letter seems like a response to the one the caucus has been assembling. “That’s sort of a good barometer for how this fight has changed, sort of in a post-SOPA [Stop Online Privacy Act] place. ... I think the politics are different.” Reclassification is now a “legitimate ask” and no longer the “third rail” it once was, he said. Green’s spokeswoman declined comment on the letter critiques, the organizations backing the letter and how many signatories he has because Green is away on a congressional delegation trip. Green is “a long-time opponent” of reclassification and had led a letter in 2010 with upwards of 70 Democrats slamming the idea, the Democratic Congressional Progressive Caucus staffer said. That 2010 Green letter, along with unanimous Republican opposition to reclassification, is how “we ended up with the sort of watered-down [net neutrality] rules, from our perspective,” the caucus staffer said.

"We feel like we're winning pretty big time right now,” a different Democratic Congressional Progressive Caucus staffer told us, pointing to what he perceived as a lack of strength in those arguments, where “the air has completely gone out of the balloon.” The caucus expects to send the letter Wednesday, the staffers said.

Green has the same “moneyed interest” allies on his side now as in 2010, the first staffer added. “I've met with folks from the industry to talk about our letter,” he said. “They seem very well organized. It’s my understanding they're trying to peel people off of our letter.” Members are “feeling pressure” but the caucus has not lost signatures yet and had added some as of Tuesday morning, he said. The staffer admitted its Dear Colleague letter, which on Monday named signatories and endorsing organizations such as the American Civil Liberties Union, did not include those on Tuesday.

"The push for reclassification isn’t entirely surprising, but hard to compare to what we've seen in the past,” Telecommunications Industry Association President Grant Seiffert told us in a statement. The FCC encountered “almost the exact opposite reaction to the way things are playing out now” in 2010 because then-FCC Chairman Julius Genachowski would have originally “reclassified aspects of broadband as Title II, and it was industry who called Title II a nuclear option.” He said the “groundswell of support and opposition from the Hill and all interested parties” is nothing new, by and large. “For many reasons, this is a visceral issue that affects a lot of parties and has been difficult to figure out for over a decade.”