FCC Should 'Step Back' on Net Neutrality While Congress Legislates, O'Rielly Says
Commissioner Mike O’Rielly urged the FCC to “take a step back” from its work on new net neutrality rules because “Congress is actively working” on legislation that would address the issue. “There is absolutely no reason why the commission needs to rush” to write new net neutrality rules, O’Rielly said Wednesday during a speech at the American Enterprise Institute. “There is still no evidence of a market failure or harm to consumers. There are no pending claims of potential net neutrality violations.”
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The House Commerce and Senate Commerce committees held hearings Wednesday on net neutrality, with the Senate hearing tied to net neutrality legislation sponsored by committee Chairman John Thune, R-S.D., that would prohibit the FCC from reclassifying broadband under Communications Act Title II (see 1501210049). O’Rielly also spoke about his positions on the FCC’s current consideration of petitions seeking pre-emption of state municipal broadband laws, the timing of the broadcast incentive auction and the commission’s NPRM on extending multichannel video programming distributor privileges to some online video services. The FCC released a text of his remarks.
O’Rielly said he’s “really troubled” by President Barack Obama’s backing of Title II reclassification and FCC pre-emption of state municipal broadband laws. Obama announced his support for ending state municipal broadband laws last week as part of a pre-State of the Union push on broadband and cybersecurity policy plans (see 1501140048). The FCC announced soon after Obama’s speech that the commission would consider two pending pre-emption petitions from the Electric Power Board of Chattanooga and Wilson, North Carolina. Obama’s push for FCC action will be “very problematic going forward to produce an independent outcome which is in the best interest of the statute and the obligations that we have,” O’Rielly said. “I don’t know what the repercussions will be.” The FCC is also expected to consider new net neutrality rules during the Feb. 26 meeting, with observers widely expecting the commission to back Title II reclassification and the municipal broadband petitions on 3-2 votes. O’Rielly and fellow Republican commissioner Ajit Pai are expected to oppose both proposals.
The Federal-State Joint Board on Universal Service should “immediately cease” any consideration of assessing USF fees on broadband service as part of its current work on USF contributions reforms, O’Rielly said. The board could still choose to impose USF fees on broadband even if the FCC doesn’t reclassify broadband as a Title II service or imposes significant forbearance as part of reclassification, he said. “Can you imagine the logic needed to justify imposing USF fees on broadband, thereby raising rates, if the commission forbears from doing the same just months before?” O’Rielly said. “Such an action would call into question the validity and value of the Joint Board and I would seek to eliminate any potential future Joint Board activity, including seeking possible statutory changes to strike its existence.”
O’Rielly said he's “at a loss as to why” the FCC is considering redefining over-the-top (OTT) providers as MVPDs in its rulemaking, which he believes is “just another attempt to exert authority over the Internet.” O’Rielly and Pai voted as concurrences on the NPRM when the FCC considered it in December (see 1412180050). The MVPD NPRM may be an attempt to “capture” OTT content under Communications Act Title VI, which when coupled with Title II-backed net neutrality rules would “leave little of the Internet free from the grasp of the Communications Act, a law not written for the Internet age,” O’Rielly said. The MVPD NPRM would also “automatically place many burdens on providers that may impact current and future business plans” and could harmfully “skew the marketplace,” he said. FCC adoption of the MVPD rules “could lead entities to abandon linear online plans, or worse remove content from the Internet,” O’Rielly said.
O’Rielly said he continues to support holding the TV incentive auction “as soon as possible” but “getting the auction structured correctly is more important than when it is held.” An auction delay “must be grounded in sound policy,” particularly if it involves garnering the support of wireless carriers, O’Rielly said. The FCC also still needs to deal with open questions on the auction rules, including how to deal with reserve spectrum, dynamic pricing, impaired markers and reverse auction opening bid prices, he said.