Congress Can Easily Address Net Neutrality Rules, Verizon's Silliman Says

Verizon is weighing whether to challenge the FCC's Feb. 26 net neutrality order in court, Silliman said. The order is “problematic,” he said. “We think this is going to litigation.” Monday, Alamo Broadband, a wireless ISP in San Antonio, and USTelecom filed the first formal appeals of the rules (see 1503230066 and 1503240060">1503240060). Verizon's challenge to the 2010 rules led to last year's decision by the U.S. Court of Appeals for the D.C. Circuit rejecting those rules for the most part and launching the FCC bid to structure an order that would survive a court challenge.

Silliman questioned the big role comedian John Oliver appeared to play in the FCC embrace of tougher net neutrality rules. Oliver’s 13-minute attack on the proposed net neutrality rules June 1 on HBO’s Last Week Tonight With John Oliver, resulted in a huge public backlash against the rules originally proposed by FCC Chairman Tom Wheeler (see 1406160039).

“You have to ask how confident you can be about long-term, stable outcomes in a world where a late-night comedian has more influences than all the policymakers in the federal government,” Silliman said. “When you begin to move policy by mob rule, you can get some short-term victories, but over the long term, you have to worry about how stable that is.” The result is “politics and demagoguery, not policymaking,” he said.

Title II of the Communications Act is “a bit of Rube Goldberg contraption,” Silliman said. “You’re using something that isn’t really fit for purpose here.” Silliman said the rules, regardless of what Wheeler has said, could mean rate regulation and fees on broadband. “Overall, there’s a lot of uncertainty now about how the FCC will apply the rules going forward,” he said. Wheeler’s comments are “largely predictive” about future behavior of regulators, not “legal analysis,” he said. “Certainly, the jurisdiction is there to expand very broadly” government control of broadband, he said.

Silliman praised several lawmakers in both chambers and parties. “It is time for Congress to really re-establish its role as the policymaking entity here,” he said. “It’s dangerous to fall into the pessimism of gridlock, 'oh, Congress can’t get things done.'” Silliman cited “good things” that have been able to happen in policy areas such as patent overhaul and cybersecurity. He urged lawmakers to get beyond the partisanship and emotion of net neutrality and lamented how it can become an all-consuming issue.

Silliman invoked the hypothetical “Title X” that Senate Commerce Committee ranking member Bill Nelson, D-Fla., has mentioned for the past several months. “Simply take the open Internet principles and put them on a sound legal basis and you’re done,” Silliman said, arguing there’s little disagreement on fundamental net neutrality principles. “Congress could do that; the FCC hasn’t had the ability to do that.” As is, the legal wrangling is ultimately “contorted,” he believes: “Congress needs to decide are they going to deal with this sooner or later, but ultimately only they can lay out a new policy framework to avoid these types of situations.”

Commerce committee leadership is “great,” said Silliman, naming Nelson, Senate Commerce Committee Chairman John Thune, R-S.D., House Commerce Committee Chairman Fred Upton, R-Mich., House Commerce ranking member Frank Pallone, D-N.J., and House Communications Subcommittee Chairman Greg Walden, R-Ore. They are not “real ideologues,” he said. He warned against repeating mistakes, considering challenges from the 1996 Telecom Act. “It is not really future-proof because it was built around assumptions of technology silos,” he said. “Any forward-looking legislation has to be built on an agnostic basis that is focused on the consumer and consumer welfare, first and foremost. … You can’t expect Congress to anticipate where technology trends will go.”