House Communications Members Stake Title II Ground at Hearing

Republicans emphasized willingness to compromise on most matters except Title II (see 1901290032). A trio of top House Commerce Committee Republicans amplified their position by proposing bills that mirrored past compromise legislation or state-level laws not backed by Title II (see 1901230046). NCTA CEO Michael Powell and Eastern Oregon Telecom CEO Joseph Franell opposed a return to Title II-backed rules, as expected (see 1902060036). Ex-FCC Chairman Tom Wheeler, Mozilla Chief Operating Officer Denelle Dixon, Free Press Senior Counsel Jessica Gonzalez and Resurrection Blvd. actress Ruth Livier favored Title II.

Communications ranking member Bob Latta, R-Ohio, filed HR-1006, which mirrors a 2010 draft measure pushed by then-House Commerce Chairman Henry Waxman, D-Calif., to enact net neutrality rules with classification of broadband as a Title I information service (see 1012070091). Latta made a similar bid in 2014 (see 1405300044). “I believe there is plenty of room for consensus” among House Communications members for a legislative compromise, Latta said Thursday: HR-1006 importantly “does not include the drastic outlier” of Title II, which is “not needed to protect consumer access to the internet.”

House Consumer Protection Subcommittee ranking member Cathy McMorris Rodgers, R-Wash., filed her Promoting Internet Freedom and Innovation Act. She said it's “based on” her state's net neutrality law and “would codify the 'bright line'” net neutrality rules, including a paid prioritization ban.

“This is a solution that passed in my home state, on a widely bipartisan basis,” McMorris Rodgers said. It “does not institute the changes to the internet that would stop innovation, stifle broadband deployment.” That law restored net neutrality protections in the FCC's rescinded rules for state-level purposes (see 1802280027). The Washington statute hasn't faced court challenges.

House Commerce ranking member Greg Walden, R-Ore., offered up the 2015 draft net neutrality bill he and other senior Republicans previously backed that included a ban on paid prioritization (see 1506040046 and 1702130044). He appeared to be backing away from the 2015 draft's paid prioritization language during the last Congress amid growing GOP opposition to a ban (see 1712200057). “A permanent, legislative solution produced in good faith with our Democratic colleagues is the only way to protect consumers, innovation, and an open internet,” Walden said.

'Strong Protections'

Commerce Chairman Frank Pallone, N.J., Communications Chairman Mike Doyle, Pa., and other top Democrats highlighted the importance of restoring the 2015 rules and their Title II legal basis. The FCC's rescission of the rules had a “far greater impact” than just removing net neutrality protections, partly signaling a “step back” by the agency from its oversight and consumer protection mandate, Doyle said. “We need a cop on the beat and the FCC ... was empowered by Congress to protect” consumers' access to the internet.

“The devil's in the details” but “what we're interested in" is ensuring "strong protections for consumers that not only cover things that were done in the past but cover the future, too,” Doyle told reporters. “Technology changes daily and we don't know what next year looks like. We want to make sure whatever we do, that there's flexibility.”

“Without a change, there is no backstop to make sure big corporations can’t use their power over the choke points of the internet to undermine and silence their small competitors or the political opposition,” Pallone said during the hearing. “Until strong open internet protections are enacted, our only hope is the millions of Americans who are fed up and will hold Congress accountable for passing strong net neutrality laws.”

Title II “has just been beaten to a pulp” by opponents of the 2015 rules, said Rep. Anna Eshoo, D-Calif. “God help us if we help people with their consumer complaints” because “that's really menacing, isn't it?” Eshoo was among those who also invoked Verizon's throttling last year of service to Santa Clara County, California, firefighters in the midst of the Mendocino Complex Fire, the largest fire in state history (see 1808220059 and 1808240039). If the 2015 rules and Title II backing remained, they “could have prevented” the throttling and prioritized firefighters' service because of public safety exemptions, Eshoo said.

Pro-Compromise Democrats

Some Communications Democrats, including new members Kurt Schrader of Oregon and Darren Soto of Florida, backed Title II and the 2015 rules but also appeared open to compromise with Republicans. The uncertainty generated over the past 15 years of debate over the issue has left “consumers virtually unprotected and businesses completely in the dark about what the rules of the road are,” Schrader said. Congress “has failed to provide the FCC with clear legislative and congressional direction” and “I for one, like several others here … favor that we go down that route.” He said he backed during last Congress the failed Congressional Review Act to undo FCC rescission (see 1901020046), but “I'd love to see our subcommittee work in a bipartisan manner” on a compromise.

Schrader later told us he “would probably support” legislation to codify the 2015 rules and Title II backing into statute “as an opening salvo in the discussion to show that we're serious about this,” but it “will probably go nowhere” in the majority-Republican Senate. “I much prefer a legislative solution that actually deals with the 21st century broadband internet,” including rules that equally apply to ISPs and edge providers, he said. Republicans have favored applying net neutrality rules to both groups, particularly any restrictions on prioritization (see 1804170037).

“The FCC tried to legislate,” but there's “always going to be a ping-pong, back and forth” there based on which party has majority control of the commission, Soto said. “It’s time for Congress to act, it’s time for a new chapter covering the internet with new rules” and “time for a call to action, rather than have more of the same for the next two years in this Congress,” he said. “But we need rules of the road, not only for ISPs but content providers and others.” There’s “a lot of folks that make up the internet.”

TechFreedom and other Title II opponents wrote Doyle and Latta urging them against enacting statutes that used Title II or Telecom Act Section 706. “If Congress provides clear statutory authority for the enforcement of net neutrality principles, there will be no need for the FCC to reassert authority under either Title II or Section 706,” the entities said. “In closing these doors on the FCC’s unbounded discretion to regulate Internet services, Congress must not open another,” including reinstating the 2015 rules' “vague” general conduct standard. FTC Act Section 5, “which gives the FTC broad discretion to punish practices that are anti-competitive, unfair or deceptive,” is the “right standard by which to police net neutrality cases, broadband more generally, and indeed, the entire Internet ecosystem.”

Senate Democrats Richard Blumenthal of Connecticut, Ed Markey of Massachusetts and Ron Wyden of Oregon wrote the FCC Wednesday urging an investigation into the top four U.S. wireless carriers' on data throttling practices. They cited a 2018 study using an measurement app developed by Northeastern University and the University of Massachusetts-Amherst. It determined the carriers were slowing data from Amazon Prime, NBC Sports, Netflix, YouTube and other services. The senators previously wrote the carriers about their concerns (see 1811150042). The FCC didn't comment Thursday.