Contention Expected for Most Bills on Deck for House Hearing

“Bad legislation” is before the subcommittee, ranking member Anna Eshoo, D-Calif., will warn in her opening statement, slamming the two measures on net neutrality. “The implications and/or unintended consequences of this legislation on the FCC’s role must be thoroughly assessed,” Eshoo will say of the rate regulation measure. “For example, how would this legislation impact the FCC’s ability to ensure transparency of below-the-line fees? What about discriminatory data caps or some future practice that we have yet to see?” She will also criticize the Small Business Broadband Deployment Act: “Proposed under the guise of not unduly burdening small broadband providers, the bill would exempt companies with hundreds of millions in annual revenue from complying with the enhanced transparency requirements included in the FCC’s 2015 Open Internet Order. This includes disclosure of promotional rates, fees, surcharges and data caps and would leave millions of consumers, particularly those in rural communities, with fewer protections than those in big cities.”

“I agree with the sentiment driving this bill,” Commerce Committee ranking member Frank Pallone, D-N.J., will say of the rate regulation legislation. “Nonetheless, I have also heard concerns that, as drafted, this bill may result in significant unintended consequences. For instance, some believe that it could spur endless litigation, leading to uncertainty in the market and deterring investment. Worse, the bill could seriously curtail the FCC’s ability to protect consumers.”

Democrats and groups including Free Press and Public Knowledge defeated a bicameral GOP appropriations rider last year that would have prohibited rate regulation of broadband, slammed as dangerously broad (see 1512160061). The committee's Democratic staff hearing memo doesn’t mention concerns with the transparency requirements exemption legislation but flags ambiguity in the rate regulation bill: “The bill does not define what is meant by ‘rate regulation,’ and as a consequence, some have expressed concern that this language may lead to unintended consequences.”

Public Knowledge Senior Vice President Harold Feld plans to blast the “broad” language of the No Rate Regulation of Broadband Internet Access Act and warn against the “significant unintended consequences” of the Small Business Broadband Deployment Act, which would codify and affect the definition of a small business exemption to the enhanced transparency requirements in the FCC net neutrality order. Feld will testify of opposing both and said any statutory limits on broadband authority “should be addressed in a comprehensive manner -- preferably in the context of a re-write of the Communications Act as a whole.” These GOP-backed net neutrality measures, both of which tout support from Communications Subcommittee Chairman Greg Walden, R-Ore., are “both premature and sweeping in scope, a combination that maximizes the likelihood of unintended consequences that would harm consumers, damage competition, and delay efforts to facilitate rural broadband deployment,” Feld will say.

But former Commissioner Robert McDowell, now with Wiley Rein, will testify in strong support of both net neutrality measures. They “foreclose two possibilities that the Open Internet Order will have negative effects on the marketplace for broadband Internet access service,” McDowell will say, according to his written testimony. McDowell will call for "friendly" amendments to HR-2666, so it will “state with specificity that it refers to all forms of regulation of the rates for Internet access services, including peering and interconnection.”

Fixed wireless ISP Aristotle “is already feeling the impact of the FCC’s rules,” President Elizabeth Bowles is to testify on behalf of the Wireless Internet Service Providers Association. “Projects that were viable investments under the 2010 regulatory regime may no longer provide sufficient returns to justify the investment. Because of the risks and costs imposed by the Order, Aristotle is reassessing its plans to expand our service into unserved areas of rural Arkansas.” She will strongly back both measures to curb the net neutrality order’s effects and cite the regulatory certainty in enacting those measures.

Industry observers who aren’t testifying also weighed in on the rate regulation bill. “Bi-partisan support for this bill should be a no-brainer,” said Fred Campbell, director of the Center for Boundless Innovation in Technology, in a Forbes opinion piece. Rick Boucher, honorary co-chairman of the Internet Innovation Alliance and a former Democratic House chairman of the subcommittee, issued a statement praising the rate regulation bill. Boucher called HR-2666 “a smart, protective measure to help continue the virtuous cycle of innovation that has fueled the Internet’s success.”

Criticism is expected for aspects of the bipartisan, bicameral Amateur Radio Parity Act. Eshoo has “some concerns” and said the bill as written “could violate the rights of homeowners’ associations (HOAs) by overruling covenants and easements that conveyed with the purchase of a property from one seller to another, or established by the will of the HOA,” she will say. “This should be addressed before the bill moves to markup.” The Democratic staff memo also noted “stakeholders representing homeowner associations have raised concerns with the existing language.” Public Knowledge endorses this measure and the Anti-Spoofing Act, Feld will say, without raising concerns. He will testify that the Radio Parity Act “appears to be an important improvement to existing FCC regulation, designed to address the demonstrated needs of the amateur radio service.”

The Community Associations Institute opposed the Amateur Radio Parity Act. It “will invalidate community association rules and architectural standards that govern the installation and use of amateur radio towers and antennas” and “reach into the governing documents of every community association in the nation, rewriting the basic private contractual agreement between homeowners to abide by the community’s governing documents,” the institute said in a 2015 advocacy bulletin, urging opposition. The House version was introduced last March and has 116 co-sponsors, including Walden as of Nov. 30.

Pallone also plans to laud the “regular order” of such a legislative hearing and hope for further hearings devoted to Democratic measures this year. He wants hearings involving the Digital Learning Equity Act, the Spectrum Challenge Prize Act, the FCC Transparency Act and Pallone’s Viewer Protection Act (see 1601050052) and Securing Access to Networks in Disasters Act, he will say: “They deserve the opportunity to be heard.”