Partisan Divide on Net Neutrality on Display in Senate Judiciary Hearing

Democrats attacked paid prioritization deals, a key focus this year as the FCC has sought to write net neutrality rules. “Whether our bill passes or not, the FCC should act to block this kind of behavior” and “go beyond antitrust laws,” Leahy said, referring to legislation he introduced that would ban such prioritization deals. “There’s a fundamental misunderstanding here,” said Sen. Al Franken, D-Minn. “Net neutrality isn’t about regulating the Internet. Net neutrality is about preserving the Internet as it is. … What the FCC has proposed -- paid prioritization -- represents a change. That’s why three and a half million people have commented.” (See separate report below in this issue.) Franken later held a news conference at the Capitol with Sen. Ed Markey, D-Mass., pressing for Communications Act Title II reclassification of broadband. Sen. Richard Blumenthal, D-Conn., pressed a witness on how startup pitches to investors would change in a world of prioritization deals.

Sen. Mazie Hirono, D-Hawaii, called Title II “not terribly applicable” to ISPs, suggesting it’s “not where we want to go” in crafting new rules. “We regulate public utilities up the wazoo,” she said, referring to the Title II classification. “Should we be talking about a new title?” The best scenario may be “a clear, new title,” she said.

Republicans framed net neutrality rules as government interference. “Rules and regulations could just end up impeding” the development of networks, create uncertainty “and ultimately cost jobs, harming the economy,” said Judiciary Committee ranking member Chuck Grassley, R-Iowa. Net neutrality regulation would “foul up the Internet,” said Sen. Orrin Hatch, R-Utah. “Without government regulation, the Internet is growing. So what’s the problem?” Sen. Jeff Flake, R-Ariz., scoffed at Franken’s remarks about preserving the Internet as-is and argued that such talk of preservation is dangerous in a dynamic industry. Sen. Mike Lee, R-Utah, cited dangers of regulation designed to govern railroads and Ma Bell, a reference to the possibility of Title II reclassification. “Unwise regulation in this area would do nothing, I fear, but stifle much-needed innovation in Internet service and, in the process, make it harder in the long run for consumers to secure better service and ultimately have a real choice, more choices than they currently have, about who delivers their Internet service,” Lee said.

Sen. Ted Cruz, R-Texas, said unelected FCC commissioners “should not be dictating how Internet service should be provided to millions of Americans.” He accused the FCC rulemaking of leading to “nanny-state regulation from Washington” and called net neutrality “a wolf in sheep’s clothing,” a “set of government directives” poised, as in other cases of such regulation, to leave “the little guys” in a “fatally strangled” position.

Center for Democracy & Technology President Nuala O'Connor, actress Ruth Livier, who has developed a Web-delivered video series, and Union Square Ventures Managing Partner Brad Burnham testified for net neutrality protections, as expected (CD Sept 17 p16). Robert McDowell, a former Republican FCC commissioner now at Wiley Rein, and Jeff Eisenach, a visiting scholar with the American Enterprise Institute Center for Internet, Communications and Technology Policy, warned against them, saying they would harm the market and create long-term dangers. Consumers should rely on antitrust laws, they said.

Reclassify and “immediately forbear,” recommended Burnham, formerly with AT&T. He called the idea that broadband is not a Title II telecom service “a fiction.” Livier also backed reclassification. O'Connor called Title II “a very significant option” but urged the FCC to consider all options for new rules, potentially relying on a hybrid of Title II and Section 706 authority. But Title II reclassification could mean a return of rate proceedings and would not ban prioritization, Eisenach cautioned: Net neutrality rules “would legitimize the efforts of tyrants everywhere."

Witnesses disagreed on the history of classification and regulation for the Internet. “It is a fallacy to say the Internet has not been regulated,” O'Connor shot back. McDowell had called the Internet “the greatest deregulatory success story of all time” and lamented that net neutrality’s definition “keeps morphing by the day,” the equivalent of a “Rorschach inkblot.” He especially warned against Title II reclassification and against applying net neutrality rules to wireless companies. Burnham and O'Connor said rules would create needed market certainty, while McDowell told Grassley “the investment community has a variety of concerns” about Title II reclassification, citing analysts. McDowell also rejected Burnham’s characterization of when the FCC judged broadband an information service and how it was regulated before: “They've never, ever been classified under Title II, those services,” McDowell said.