Waxman ‘Hybrid’ Net Neutrality Recommendations Face Deluge of Industry Objections
Industry slapped down the latest net neutrality proposal from House Commerce Committee ranking member Henry Waxman, D-Calif. He urged the FCC to consider a hybrid net neutrality proposal that combines Communications Act Section 706 and Title II authority, as expected (CD Oct 3 p1). Waxman sent FCC Chairman Tom Wheeler a 15-page letter Friday, signed by him alone. He had outlined a different proposal with some similarities in a May letter, then advising Title II as a regulatory backstop to rules crafted under Section 706.
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"I recommend that the FCC consider reclassifying broadband Internet access as a ’telecommunications service’ under Title II and then using section 706 to adopt three open Internet provisions: a ‘no blocking’ rule, a ‘no throttling’ rule, and a ‘no paid prioritization’ rule,” Waxman wrote (http://1.usa.gov/1vDkxdW).
The first two rules should come with a reasonable management exception but not the third, Waxman said, citing “economic considerations” rather than technical. Both authorities can be used “at once,” he said. Waxman, who’s retiring after his current term, argued the approach would provide consumer protections and “would address the major concerns of the broadband providers because the main substantive provisions of Title II would not be invoked,” with forbearance of Title II Sections 201 and 202 among others.
Industry officials familiar with the letter disagreed with this rationale in interviews Thursday and said even such forbearance would not satisfy industry concerns. Republicans also widely oppose reclassification. Waxman questioned the “survivability in court” of Section 706 if were to stand alone as statutory authority for net neutrality rules and defended his approach: “There is no inconsistency in finding that broadband service fits the technical definition of a ’telecommunications service,’ while simultaneously concluding that the public interest mandates forbearance from applying provisions of Title II."
NCTA and USTelecom issued statements condemning the idea. Reclassification “is unnecessary to provide consumers with reasonable network neutrality protections and will result in years of uncertainty and legal tussles,” NCTA said (http://bit.ly/1uke9Ys). “History has shown that forbearance is far from certain or quick and Title II advocates have already indicated their opposition to the type of forbearance that this approach suggests.”
Reclassification “remains a nonstarter for our industry,” said USTelecom President Walter McCormick. “The legal reasoning underpinning Rep. Waxman’s letter is fatally flawed. The viability of his recommendation hinges entirely on the FCC’s ability to forbear from the most significant sections of Title II, an enormous task that the FCC has never undertaken and that the last Democratic chairman determined was ill-advised.” McCormick pointed instead to “the clear path that the D.C. Circuit laid out through Section 706."
"There is no half step or hybrid approach when it comes to reclassifying the Internet under Title II,” said Broadband for America, which has ISPs among its members. “It is shortsighted to think that opening the door to more regulation, market uncertainty and legal questions with his proposed ‘Title II light’ approach would end in anything less than the overregulation of a flourishing industry."
Keep some sections of Title II, Waxman recommended. He named Section 222 for privacy reasons in case reclassification takes away the FTC’s ability to protect broadband consumer privacy, and Section 255 to “ensure broadband Internet service remains accessible to individuals with disabilities.” FCC net neutrality rules should apply to both fixed and mobile broadband service but the agency should “structure and interpret the ‘reasonable network management’ exception differently” for mobile “to account for unique bandwidth challenges of a mobile network,” he said.
"Waxman’s proposal ignores the Communications Act, FCC precedent and the case law,” said Phoenix Center President Larry Spiwak in a statement. “He says the FCC should reclassify, but then forbear from Section 201 and 202 -- something the FCC has never done. Besides, if you forbear from 201 and 202, what’s the point of reclassification?”
The plan is a “step backward,” said Information Technology and Innovation Foundation Telecom Policy Analyst Doug Brake in a statement, arguing it wasn’t a hybrid compromise. “His proposal would gut section 706 of all its advantages, effectively removing the FCC’s ability to carefully decide what forms of discrimination are appropriate over time,” Brake said. “The approach is more a combination of the worst of Title II with expanded FCC section 706 power than anything resembling a compromise. Congressman Waxman fears the main advantage of 706 -- its flexibility.” Brake suggested Congress focus on overhauling the Communications Act “rather than advising the FCC to shoe-horn new regulations into old ones."
Some net neutrality advocates have strongly advocated Title II reclassification and dismissed what, as Public Knowledge said in a Thursday blog post (http://bit.ly/1ukder7), amounts to “forbearance fearmongering” from industry. Free Press issued a statement Thursday as part of the FCC net neutrality roundtable process, insisting that Title II would not hurt investment (http://bit.ly/Z1VmFo). The hybrid plan “avoids putting vitally important open Internet protections in jeopardy through legal gymnastics,” Waxman said.