Net Neutrality Advocates Struggle to Digest GOP's Open Internet Embrace

Thune’s 11 “principles for bipartisan rules in the Internet Age” would ban blocking, throttling and paid prioritization; demand transparency; and, unlike the FCC’s vacated 2010 rules, apply to wireline and wireless providers. His principles call for reasonable network management and specialized service, plus protecting consumer choice. One principle says broadband should be treated as an information service, under Title I of the Communications Act, as it has been for years. Another says Telecom Act Section 706 “may not be used as a grant of regulatory authority.” The FCC would be forced to follow these principles, the final principle asserts.

The principles reverse past GOP positions, some observers said. As Thune told us in April, Republicans are “not in favor of net neutrality” rules and “don’t think [the FCC] ought to do anything” to restore them (see 1404300057). Thune opposes Communications Act Title II reclassification of broadband, which the FCC may do at its February meeting in crafting net neutrality rules (see 1501150057). The White House pressed the FCC last fall for four bright-line rules under Title II, banning blocking, throttling and paid prioritization, and ensuring transparency.

The long-term view of what the FCC can do and its authorities is what dictated Thune’s sudden openness to net neutrality principles, a senior Senate GOP aide told us. There's motivation among the Republican backers to curtail the FCC from imposing Title II-like rules in the future and to avoid excessive regulation, he said. The legislation was born out of desire to find a deal, he said.

Two Hearings

Senate and House Commerce GOP leadership are uniting to press this legislative alternative, announcing two net neutrality hearings for Wednesday. The House Communications Subcommittee begins its hearing at 10 a.m. in 2123 Rayburn, and Senate Commerce will follow at 2:30 p.m. in 253 Russell. Industry officials told us CTIA will testify at both hearings, making wireless a focus. NCTA is also expected to testify at the House hearing, and ex-FCC Commissioner Robert McDowell, a Republican now with Wiley Rein, at the Senate hearing.

“We will soon put forward a legislative plan that will protect consumers, promote innovation and investment, and provide legal certainty,” said Subcommittee Chairman Greg Walden, R-Ore., in a statement. “This hearing will show that the FCC cannot achieve that same certainty nor do they have authority to accomplish as much as Congress can through the legislative process.” Thune called the hearing an “opportunity to discuss and gather input from experts” on how Congress can sidestep “arcane” regulatory frameworks. Thune and House Commerce Committee Chairman Fred Upton, R-Mich., joined to promise the same (see 1501140043).

“I'm encouraged that at least two Republicans who have opposed net neutrality rules for so long now claim to have seen the light, but they will have to earn the trust of the tech community and the details will matter -- details about the definition of paid prioritization, throttling, reasonable network management, specialized services and the FCC’s enforcement authority,” Marvin Ammori, New America Foundation fellow and attorney backing strong rules, emailed. The FCC should, given its “complete record,” act immediately to ensure rules are in place, Ammori said. Although he criticized GOP “demonizing” of Title II, Ammori said he hopes this marks a shift in Republican thinking, which others also observed with interest.

Some advocates worried about the municipal broadband implications. Such a Title X bill may be “an attempt to derail the FCC from doing its job,” said Todd O’Boyle, Common Cause program director-Media and Democracy Reform Initiative, of the expected bill from Thune. “This legislation would take who knows how long.” O’Boyle feared some of the principles could restrict the FCC’s powers in unfortunate ways -- the principle limiting Section 706 authority would “hamstring” FCC ability to pre-empt state laws that restrict municipal broadband, he said. “We do have serious concerns,” agreed Public Knowledge Vice President-Government Affairs Chris Lewis, citing Section 706 restrictions. The White House’s request Wednesday that the FCC pre-empt state municipal broadband restrictions “would be based on Section 706 authority,” he said. There are several Title II provisions that can be “applied to broadband without reclassification,” which could be affected, he said. Much depends on the bill text, Lewis said, but Public Knowledge is working with Capitol Hill GOP offices to make known concerns about how these principles could affect an all-IP world and areas such as universal service, privacy and emergency communications, if enacted into law.

The senior Senate GOP aide disputed that the principle about Section 706 was included due to the White House announcement on municipal broadband. Discussions had surrounded clarifying Section 706 for months, and GOP Hill staffers are not entirely sure what authority FCC Chairman Tom Wheeler would use to pre-empt state laws, so there’s no certain sense of the effects, he said.

Mixed Reception

“On the surface, some of these principles do appear to mirror the president's positions,” said Free Press Policy Director Matt Wood, who prefers reclassification. “But we haven't seen any actual legislative language that supposedly goes about implementing them.”

“Don't be fooled,” said Free Press President Craig Aaron in a Huffington Post op-ed Thursday, slamming missing priorities that “have Comcast's fingerprints all over them. Most notably, there's no discussion of ‘nondiscrimination,’ which is the essence of Net Neutrality and the most important part of the Title II approach endorsed by President Obama and millions of Americans.”

“What really matters is the Internet user's online experience and the creation of strong enforceable rules to protect an open Internet,” said Internet Association President Michael Beckerman in a statement. “The path forward is not a binary choice, and we have a responsibility to protect a free and open Internet by working with regulators, legislators, and stakeholders." The association, with members including Facebook, Google and Netflix, has backed Title II. Beckerman wants the FCC to produce enforceable rules, he said.

TechFreedom President Berin Szoka disagreed that Republicans are “giving away the store.” They seem to be acknowledging a deal is needed to avoid Title II, one that politically requires a ban on paid prioritization and would give the FCC “narrow but clear authority while blocking the agency from using either Title II or Section 706 to regulate the Internet,” Szoka said. American Enterprise Institute scholar Jeff Eisenach urged the FCC to embrace the Hill proposal, in an op-ed for The Hill. The bill would be an “exit strategy” from the net neutrality “quagmire,” Eisenach said.

NCTA is “encouraged,” a spokesman told us. “We believe Congress can play a constructive role in offering meaningful open Internet rules that avoid the collateral damage of ill-fitting Title II regimes.”