DC Circuit Ruling Could Prod Congress on Net Neutrality Legislation
BOSTON -- Regardless of how the U.S. Court of Appeals for the D.C. Circuit rules on the challenge to the FCC order on net neutrality, that ruling could spur Congress to work on a legislative solution, congressional staffers said Monday at INTX 2016. "This issue is not going to be settled" until Congress acts, Senate Commerce Committee GOP telecom policy director David Quinalty said during a panel Monday on congressional communications policy.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
Bipartisan work on the Securing Access to Networks in Disasters Act (HR-3998) gives hope Congress could forge bipartisan net neutrality legislation, said NBCUniversal Senior Vice President-Government Affairs Mitch Rose. Said Quinalty, "Forged vs. passes is a pretty big gap."
Senate Commerce Committee ranking member Bill Nelson, D-Fla., and Senate Commerce Committee Chairman John Thune, R-S.D., have been trying to come to some agreement, but finding middle ground is difficult since the FCC's Title II order last year, Quinalty said. The political window "to do something meaningful" was more open before the Title II reclassification, he said. Grace Koh, a GOP telecom counsel for the House Commerce Committee, said there has been little interest in a bipartisan approach because of that net neutrality decision by the FCC.
Even if the D.C. Circuit completely upheld the FCC, Quinalty said, "it only makes it more important to do congressional oversight," because the FCC -- with Title II and Telecommunications Act Section 706 powers -- would have unfettered regulatory power over the Internet.
The D.C. Circuit could rule any number of ways, with it deciding the FCC has regulatory authority but rejecting some of the agency's net neutrality rules seeming particularly likely, Quinalty said. Most court watchers seem to believe the wireless rules will be overturned but the wireline rules upheld, Koh said. None of the panelists had any thoughts on timing of the court decision.
The FCC's set-top approach "has been highly problematic," Koh said, saying the Downloadable Security Technology Advisory Committee work that came before it went beyond the FCC's scope while the set-top rulemaking is "ill-founded and ill-conceived." She also said the third-party privacy certification process is rife with potential problems such as a lack of clarity about how privacy would be enforced or monitored. NBCU's Rose said there hasn't been any sign the FCC has thought about how to deal with "rogue box" makers overseas.
Thune is concerned with jurisdictional issues in the set-top proceeding, with the FCC believing Communications Act Section 629 authority lets the agency regulate software as well -- a notion "wildly beyond ... congressional intent," Quinalty said. Several lawmakers questioned Section 629's statutory basis in set-top rulemaking (see 1604250047). With the agency not having been reauthorized by Congress in a quarter-century, he said, "It's not surprising at this point the FCC thinks, 'Why bother with Congress?'" And despite the objections and outcry over the set-top issue, the FCC is unlikely to call time-out on the proceeding, Quinalty said: "It doesn't seem like the FCC's modus operandi right now ... to go slowly."
Given the different privacy regulations of ISPs and edge provides, House Commerce Committee ranking member Frank Pallone, D-N.J., wants to see consistent consumer safeguards -- which could be solved by removing the common carrier classification or giving the FTC some rulemaking authority, said Gerald Leverich, Democratic counsel to the House Commerce Committee.
Asked about Pallone taking the FCC to task for considering reclassification of some over-the-top services such as multichannel video programming distributors (see 1510090054), Leverich said it was because it wasn't clear how that reclassification plays out in the market: "It was too early to say if it would clearly be a win for consumers." Koh said House Communications Subcommittee Chairman Greg Walden, R-Ore., isn't interested in new regulations on new entrants into the video marketplace and would rather let traditional players in that market "be regulated by the market."
On the likelihood of Congress freeing up additional spectrum in the near future, Quinalty said the Mobile Now spectrum bill (S-2555) "does the foundational work" for future spectrum allocations. He also said the hope is to get Senate consent on the legislation and move it to the House.