Doyle Vows to Seek Net Neutrality With Title II Language
House Communications Subcommittee Chairman Mike Doyle, D-Pa., said he's intent on advancing net neutrality legislation that contains the legal language of Communications Act Title II. Title II-level language is needed to underpin “strong, enforceable” rules and to ensure “a cop on the beat to enforce them,” he said at a University of Pittsburgh Law Review event Friday. James Donahue, Pennsylvania executive deputy attorney general-public protection, and others questioned whether FCC reliance on transparency rules and antitrust and consumer protection enforcement are sufficient backstops after FCC reversal of Title II regulation.
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Net neutrality advocate Gigi Sohn likes her side's prospects in its challenge to the FCC Title I broadband deregulation order at the U.S. Court of Appeals for the D.C. Circuit. The commission is likely to lose on its "express pre-emption" of state net neutrality regulation, but most specific state actions will probably be shot down under constitutional "conflict pre-emption," said Daniel Lyons, Boston College law professor.
Doyle backs the prior FCC's 2015 decision to reclassify broadband as a Title II telecom service subjecting ISPs to common-carrier regulation. He said the statutory backing continues to be needed to ensure ISPs are obligated to provide “just and reasonable” service. Doyle and other House Communications Democrats aired support for Title II language at a hearing last month (see 1902070056). Doyle and others are less enthusiastic about Republican-led bills without Title II (see 1902220001).
Donahue noted states have various internet interests, including consumer protection and ensuring dominant providers don't have an unfair advantage. He suggested it's possible ISPs could strike paid prioritization deals that "disadvantage" other players. "Antitrust is a remedy, but ... is that remedy effective?” he asked. In the "fast moving" internet sector, he's "not sure" antitrust will work well because cases could take five years to get to trial and play out over a decade.
FCC reliance on FTC enforcement of a transparency rule and ISP disclosures won't adequately protect consumers, said Sohn, Georgetown Law Institute for Technology Law & Policy distinguished fellow. "If your broadband provider tells you that it will block or throttle or engage in paid prioritization, there’s nothing the FTC will do about it." The FCC was right to undo Title II but went too far in repealing bright-line net neutrality rules, said Doug Brake, Information Technology and Innovation Foundation director-broadband and spectrum policy.
Sohn was heartened by oral argument (see 1902010046). "I think the pro-net neutrality forces have a good chance of succeeding," she said. She had "no bloody idea" on what grounds net neutrality advocates might win but suspects at least some of their arguments "will stick." The "one thing of which I am positive -- the litigation will continue regardless of who wins," she added.
Lyons said states have a "clever argument" likely to succeed at the D.C. Circuit: the FCC lacks power to expressly pre-empt state net neutrality actions after relinquishing its broadband regulatory authority. That doesn't end the analysis, he said, as state efforts remain subject to conflict pre-emption, under the Constitution's supremacy clause, when their actions frustrate the FCC's overall deregulatory framework. He said most state net neutrality laws and orders probably will be pre-empted. He's less sure about procurement policies requiring net neutrality adherence, particularly if they target state entities.
The FCC's Title II net neutrality repeal shreds public safety communications safeguards, said Catherine Sandoval, Santa Clara University law professor and ex-California public utilities commissioner. People in California were "up in arms" over Verizon's "throttling" wireless use of Santa Clara County firefighters battling wildfires, she said. Verizon disputes that. She cited the FCC's "failure to understand the public side of public safety," which includes the need to protect consumer internet uses that assist in disaster response.