Waxman Likely to Press Wheeler on Using Title II for ‘Hybrid’ Net Neutrality Proposal

Waxman has seized on net neutrality at various junctures all year. In February, he and several other Democrats introduced legislation to restore the FCC’s vacated 2010 net neutrality rules. In May, Waxman sent a letter to Wheeler urging him to create new net neutrality using Section 706 but with Title II authority as a regulatory backstop. He has spoken with Wheeler throughout the year, he has said. Roger Sherman, once an aide to Waxman and House Commerce Committee chief Democratic counsel, now leads the agency’s Wireless Bureau under Wheeler. Waxman isn’t seeking another term, retiring when his current one ends after four decades in Congress.

A Waxman spokeswoman would not confirm details of a potential letter and didn’t comment. Industry officials said Waxman’s former language about using Title II as a regulatory backstop -- used in his letter to Wheeler in May -- seems to be gone and that he will now urge reclassification and forbearance. The proposal included in the letter would apply to wired and wireless broadband, they said. The Waxman proposal would forbear from the bulk of Title II, including Section 202, essentially creating a blank check for Section 706, said a communications industry lawyer.

But Waxman is showing more aggressive openness to Title II, the industry lawyer said, by modifying the language to frame the net neutrality proposal as one of hybrid jurisdiction rather than calling for Title II a regulatory backstop. But either version would have involved reclassification and included the accompanying problems, said the lawyer.

"It’s kind of a mystery,” said Everett Ehrlich, former undersecretary of commerce in the Clinton administration and president of ESC Co. “It’s not clear what makes it a compromise.” His firm advises telecom companies. He worried about what reclassification would allow, such as regulation of interconnection in the Internet sphere. “These hybrid proposals attempt to compromise [about] a conflict between service provider and content providers,” helping content providers in the area of media ownership but with unclear promise for service providers, he said. “It’s an invitation to keep judges in the picture.” Waxman’s proposal ultimately “throws a lot of dust in the air,” he said.

"The point that some people seem to keep missing about Title II is that it’s already a flexible framework for competitive and deregulated markets,” said Free Press Policy Director Matt Wood. “The FCC has the power today to forbear from any and all parts of the statute, with or without a letter explaining that reality to the agency.”

'Positive’ Trend?

Waxman’s letter is “clear evidence” of trends in a “positive direction,” said Computer & Communications Industry Association Vice President-Government Relations Cathy Sloan, saying she had no firsthand knowledge of it. Waxman assumed “the mantle of deal-maker” in the last battles on this issue leading up to the creation of the 2010 rules, she said.

Other Democrats have pressured the FCC on which authority to use. Congressional Republicans vehemently oppose Title II reclassification, and a growing chorus of Democrats has urged reclassification. House Communications Subcommittee ranking member Anna Eshoo, D-Calif., suggested recently that the FCC use a sliver of Title II, focusing on Section 202, in crafting the rules. Eshoo wants to replace Waxman as the top Commerce Committee Democrat in the next Congress. Rep. Zoe Lofgren, D-Calif., had also mulled sending the FCC a letter last month advocating Title II regulation limited to net neutrality (CD Sept 12 p9).

Free Press has, among many others groups, advocated Title II reclassification of broadband as the FCC crafts net neutrality rules. Demand Progress still considers its “bottom line” to be Title II reclassification with forbearance, Executive Director David Segal said. Eshoo’s “suggestion to focus on the nondiscrimination provisions is welcome, but it’s not a new hybrid or blend,” Wood said. “Those are the exact same provisions of Title II that the FCC already applies today to things like wireless voice, or business broadband services.”

One media industry official, familiar with the likely Waxman letter, called any rule that involves reclassifying broadband “a nonstarter because a cloud of common carrier regulation will always be present.” Forbearance under Title II is not assured, he said, saying forbearance petitions inspire “strong opposition and net neutrality advocates have already made it clear that they will oppose significant forbearance.” A forbearance fight could take years and create regulatory uncertainty that would hurt both broadband infrastructure investment and the Internet economy, the official said.

The communications industry lawyer agreed. Any inclusion of Title II, whether in proposals from Waxman or Eshoo, would cause years of uncertainty and litigation, he said, saying industry seems unified on this. He called reclassification the “third rail” and slammed all of the baggage that comes with it. The lawyer sees not much substantially new with Waxman’s pending proposal, he said, recalling ex-FCC Chairman Julius Genachowski’s talk of a “third way” and other hybrid proposals that have been in the mix.

"The good thing about such proposals is that we're at least moving the conversation in the right direction,” Wood said. “If people are talking about which portions of Title II to use, that’s great, because it shows that all of the carriers’ lies and scare tactics around Title II are losing their charm. But Title II already provides both the flexibility and the authority that the FCC needs, if only people inside the agency and in our press corps too, would look at the facts and the law.” (jhendel@warren-news.com)