A proposal as sweeping as moving Internet providers into regulation under Title II of the Communications Act is sure to gather criticism.
When Federal Communications Commission Chairman Tom Wheeler announced that he was sending a proposal doing just that to his fellow commissioners, that’s exactly what happened. But unlike the usual partisan reactions that characterize any efforts at change in Washington, some of what’s being heard is actually constructive criticism.
Part of the problem has been that Wheeler chose not to release the actual proposal publicly and instead just sent it as an internal FCC document. Because of this, the first knowledge of what the proposal contained came from Wheeler’s own statements, which given the proposal’s 300-plus page length were necessarily limited.
Now, one of the first people to actually see Wheeler’s proposal, another FCC commissioner, has released his thinking on what is in the proposal. Commissioner Ajit Pai, one of the Republican minority members on the commission, has released his own critique of Wheeler’s proposal, and as you might expect, he has found things he doesn’t like.
According to Pai, the proposal gives the FCC the power to micromanage every aspect of how the Internet works and includes the ability to impose new taxes on the Internet, even though no new taxes are included in the current proposal. In addition, Pai says the Wheeler proposal explicitly contains language giving the FCC power to regulate rates for Internet access.
Pai also suggests that the Wheeler proposal will lead to new litigation, which is a virtual certainty no matter what proposal the full commission approves. He also contends that it will reduce Internet access and bandwidth, the reality of which depends on how you interpret Title II and on what provisions of the act the FCC decides to waive enforcement. In any event, because Pai is one of the minority commissioners, he has limited ability to actually change the Title II proposal.
Congress, meanwhile, is investigating the FCC chairman’s actions, suspecting undue influence by the White House into the operations of a supposedly independent agency. This is because Wheeler’s net neutrality plan is a lot like what President Barack Obama suggested in a speech in November.
Perhaps most important is that it’s Congress that makes the rules that the FCC must follow. What this means is that Congress can write legislation that solves a number of problems for the FCC, notably those pesky court decisions that have found that the agency has exceeded its authority. Those decisions are the reason why the FCC is revisiting all of this now.
To this end, the Senate Committee on Commerce and the House Energy and Commerce Committee have both scheduled hearings on Feb. 21 that could lead to legislation that would essentially give the FCC exactly what it wants without resorting to Title II.
Congress Weighs Legislation That Would Trump FCC Internet Proposal
The proposed legislation would keep the Internet classified as an Information Service, and clarify the intent of Section 706 of the Communications Act (which is what the FCC is using for part of its proposal) as not being a grant of regulatory authority.
While this proposed legislation does limit the FCC’s authority to some extent, it does accomplish the ends that the FCC has been trying to achieve for the past few years, and which have been overturned by the federal courts because Congress hasn’t authorized the commission to take action.
Notably, the proposed legislation is a bipartisan bill. Both House of Representatives and Senate committees have been working on this legislation for years, and it’s only now seeing the light of day following the proposed Title II action by Wheeler.
For his part, Wheeler has said on more than one occasion that it’s Congress that makes the rules that he follows, and he has not gone on record as opposing the legislation that’s under discussion.
It’s also worth noting that both Wheeler and his predecessor have been reluctant to place the Internet under Title II, and they have resisted doing so for years. It was only after the president publicly said that he wanted it done this way that the FCC changed direction. This, of course, is why Congress is investigating.
Remember, though, this is Washington. Not everything that goes on here is what it appears to be. Might it be that the FCC, growing weary of waiting for Congress to move, finally found its regulatory cattle prod? It could be that Wheeler’s Title II proposal actually is what’s needed to get Congress to take action on effective legislation.
A look at the proposed congressional action makes it seem this way. Here are the specific goals as put for by both committees:
–Prohibit blocking
–Prohibit throttling
–Prohibit paid prioritization
–Require transparency
–Apply rules to both wireline and wireless
–Allow for reasonable network management
–Allow for specialized services
–Protect consumer choice
–Classify broadband Internet access as an information service under the Communications Act
–Clarify that Section 706 of the Telecommunications Act may not be used as a grant of regulatory authority
–Direct the FCC to enforce and abide by these principles
If those points (except the final one) look like they were written by the FCC, you would share the view expressed by many observers. The fact that this proposal is bipartisan and seems to echo the positions of a number of Democratic lawmakers makes it seem likely that this could pass.
Because it codifies the FCC’s long-held intent and the president’s goals (except the part about Title II), it could even be that the president would sign this legislation. But will it become law? As long as it escapes partisan bickering or strenuous telecom industry resistance and lobbying, it might. Stranger things have happened.