Cruz Questions Wheeler, Other Commissioners on Net Neutrality

Cruz co-sponsors the Restoring Internet Freedom Act (S-2602), a bill from Sen. Mike Lee, R-Utah, that would strike the net neutrality order and prevent similar regulations. Other co-sponsors include Majority Leader Mitch McConnell, R-Ky., and GOP Whip John Cornyn, R-Texas. Commerce Committee Chairman John Thune, R-S.D., has sought bipartisan net neutrality legislation and said he would move only bills that could garner full Senate approval.

The FCC net neutrality order “revised the definition of ‘public switched network’ to mean ‘the network that . . . use[s] the North American Numbering Plan, or public IP addresses, in connection with the provision of switched services,” said Cruz. “Although the FCC disclaimed any intent to ‘assert’ jurisdiction over the assignment or management of IP addresses by the Internet Numbers Registry System ... the FCC’s decision to equate telephone numbers with IP addresses nonetheless gives the FCC statutory jurisdiction over IP addresses as a matter of law. Over 20 years ago the FCC concluded that Section 201 of the Communications Act gave it plenary jurisdiction over telephone numbers, because ‘telephone numbers are an indispensable part’ of the duties that section 201 imposes on common carriers.”

Cruz posed two questions for commissioners: “How can the FCC uphold the public interest requirements in section 201 of the Act if it refuses to assert its statutory authority over an indispensable part of the public switched network? If the FCC believes regulation of IP numbers used to connect end points on the public switched telephone network is unnecessary, why hasn’t it forborne from the regulation of telephone numbers?”

The FCC didn’t “suggest that the Commission asserted authority over IP addresses, either pursuant to Section 201(a) or pursuant to Section 251(e)” of the Telecom Act, Wheeler told Cruz in his written responses, recently made public. “In fact, the Commission forebore from Section 251(e) -- the provision that gives the Commission authority over telephone numbers. IP addressing -- in contrast to telephone numbers -- is already governed by IANA, (the Internet Assigned Numbers Authority), a department of ICANN, that is responsible for the global coordination of IP addressing, among other coordination functions.”

“The Commission’s approach is consistent with the historic execution of its functions under the Communications Act,” Commissioner Jessica Rosenworcel told Cruz in her responses. She cited the belief that the public switched network shouldn't be defined in a static way and said the commission clearly said it wouldn't assert jurisdiction over IP addresses. “The Commission updated its definition of public switched network to include the widespread use of IP addresses, but did not in any way assert jurisdiction over IP addresses,” she said. Rosenworcel defended the FCC for not forbearing from the regulation of phone numbers: “The Commission has not forborne from these policies and rules because they remain critical to the successful function of the public switched network.”

Rosenworcel’s renomination is pending before the full Senate, and Cruz and Lee are two GOP senators placing holds, a telecom industry lobbyist told us Friday. Their spokespeople haven't confirmed holds. Thune previously referred to such GOP holds on her renomination and told reporters Wheeler’s refusal to say whether he will step down at the end of the Obama administration isn't helping move her renomination along (see 1603020056). Wheeler refused to make that pledge again during the latest episode of C-SPAN’s The Communicators (see 1604070071). Commerce Committee ranking member Bill Nelson, D-Fla., has insisted Republicans advance the renomination, citing a deal from last Congress. Some other GOP offices, including that of Judiciary Committee Chairman Chuck Grassley, R-Iowa, deny placing holds.

The calendar isn't looking good for Rosenworcel’s renomination, the telecom lobbyist said. Her term expired last summer and she can serve through the adjournment of Congress this year. The lobbyist sees many factors at play, notably Wheeler’s stance on stepping down but also Republican staffers watching Rosenworcel’s positions on the many recent Wheeler proposals, some of which are controversial among Capitol Hill Republicans.

“Nothing in the Open Internet Order suggests that the Commission asserted authority over the assignment or management of IP addresses, either pursuant to Section 201(a) or pursuant to Section 251(e),” Commissioner Mignon Clyburn told Cruz in her responses.

The Republican commissioners told Cruz of broader concerns. “I do not believe that Congress has given the FCC any role with respect to regulating the Internet -- instead, Congress told us to leave the Internet ‘unfettered by Federal or State regulation,’” Commissioner Ajit Pai said in his answers. “As I stated in my dissent to the Title II Order, the FCC’s approach to forbearance in this area has been scattershot and unprecedented.”

“Inconsistencies, such as those raised” by Cruz, “are one of the many unintended consequences of regulatory overreach and using outdated rules on modern technology,” replied Commissioner Mike O’Rielly. “Hopefully, this change of definition, which was implemented without opportunity for public comment and is inconsistent with prior Commission precedent, will be struck down by the D.C. Circuit.”

The written exchanges, dozens of pages in cumulative length, include questions from Thune and other GOP senators including Ron Johnson of Wisconsin and Dean Heller of Nevada. Wheeler assured Thune of the FCC’s cooperation with the FTC on broadband privacy, citing the agencies' memorandum of understanding. Wheeler also defended to Thune the resolution of the stand-alone broadband support through the recently adopted rate-of-return overhaul and his set-top box proposal using Section 629 authority to address software.

Sen. Roy Blunt, R-Mo., referred to Wheeler’s “immediate response following the hearing regarding my concerns with the timeliness of replies from the Commission to Members of the Senate, and your commitment to improve response times.” Wheeler told Blunt he is “always available” to Commerce Committee members: “I routinely take phone calls and answer a broad number of letters related to the Commission’s work.” Wheeler addressed questions about such issues as wireless mic providers’ fate after the broadcast TV incentive auction, the broadcaster repacking process and Telephone Consumer Protection Act compliance measures.

The elimination of broadcast exclusivity rules is “unlikely to have an immediate effect on programmers, broadcasters, cable companies, or consumers,” Wheeler told Sen. Steve Daines, R-Mont. “Broadcast program contracts and network affiliation agreements regularly contain their own exclusivity provisions prohibiting a program from being imported into a market if it is being shown on a local broadcast station. In these circumstances, retaining the exclusivity provisions may well be redundant and a federal intrusion, without cause, into the marketplace. Faith in the free market would suggest that government get out of the way, absent an indication of harm.”

Rosenworcel pledged to Blunt she will work to avoid party-line FCC votes and told Daines she backs “a permanent exemption, or at a minimum, a further extension of the exemption from the enhanced transparency rule for these [small] providers.” That is a priority that Daines is expected to press at the Commerce Committee markup of the FCC Reauthorization Act.