Net Neutrality Order Provoking Broader Hill Authority Debates
The February FCC net neutrality order may provide momentum to any congressional proposal to end the FTC’s common carrier exemption, industry observers told us. That exemption precludes FTC Act Section 5 jurisdiction over common carriers subject to the Communications Act, and the FCC order reclassifies broadband as a common carrier service under Title II of the Communications Act, potentially upsetting jurisdictional boundaries. Any proposal may get entangled in net neutrality, complicating the issue in a messy legislative battlefield over agency authority for the FCC and FTC, observers said.
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Rep. Zoe Lofgren, D-Calif., raised the idea of legislation during last month’s House Judiciary hearing on net neutrality, featuring FCC and FTC commissioners (see 1503250059). “What do you think about amending the FTC statute so that the common carrier carve-out was either diminished or eliminated?" she asked. "Would that make any sense?” FCC Chairman Tom Wheeler told her the idea is “worthy of review” and will “require legislation to resolve it.” The agency is working on a memorandum of understanding on how to cooperate with the FTC “in the interim,” Wheeler told her.
Lofgren isn't working on legislation to repeal the common carrier exemption, her spokesman told us Tuesday. Others see the question of FTC authority as a key potential point in upcoming Capitol Hill debates. Spokespeople for the FCC and FTC declined comment.
“There is pretty broad support for repealing the archaic common carrier exemption,” said Andrew Schwartzman, senior counselor at Georgetown University's Institute for Public Representation. “I suspect the carriers would prefer to keep it, but I doubt they would want to be too public about that. A clean bill might move, but the problem is that it might well become wrapped into larger net neutrality discussions, which would complicate passage.”
Authority battles have already come up this year, a former Democratic House staffer said, pointing to the data security legislation from Reps. Marsha Blackburn, R-Tenn., and Peter Welch, D-Vt. It cleared the Commerce Trade Subcommittee last month amid much partisan wrangling and included language on the FTC common carriage exemption (see 1503250056). Lawmakers who want the FTC to be the holder of authority will be more inclined to nix the common carrier exemption, the ex-staffer said. He predicted industry will find it attractive for the Blackburn-Welch legislation to move some authority from the FCC to FTC. These questions of authority over common carriers will continue amid greater significant debates on USF and privacy and how each agency will take the reins and in what way, he said.
“We welcome the strongest consumer protection possible, by re-examining the FTC common carrier exemption as appropriate,” emailed Todd O’Boyle, program director for Common Cause's Media and Democracy Reform Initiative. “Any legislation faces long odds in Congress thanks to hyperpartisanship and parliamentary sclerosis. In any event, no legislative dealmaking should dilute the Commission's 2015 Open Internet rules -- they represent the baseline.”