Can We All Agree on Network Neutrality Legislation?

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Friday, March 8, 2019

Weekly Digest

Can We All Agree on Network Neutrality Legislation? 

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Round-Up for the Week of March 4-8, 2019

Robbie McBeath

With much fanfare on March 6, House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY) launched the Save the Internet Act, legislation that would restore the strong, court-approved net neutrality rules that the Federal Communications Commission repealed in 2017. The legislation, to be introduced by House Communications Subcommittee Chairman Mike Doyle (D-PA) and Senator Ed Markey (D-MA) in their respective chambers, would enshrine the three "bright-line" net neutrality rules – no blocking, no throttling and no paid prioritization – and empower the FCC to prohibit unjust, unreasonable, and discriminatory practices by broadband internet service providers. If adopted, the legislation also would ensure consumers can make informed decisions when shopping for internet plans and restore the FCC’s authority to fund broadband access and deployment, particularly for rural communities and struggling Americans. The Save the Internet Act codifies the FCC’s 2015 Open Internet Order. 

The Return of Title II

The legislation reverses the Restoring Internet Freedom Order -- the 2017 move by FCC Chairman Ajit Pai that repealed net neutrality protections previously adopted by the FCC in 2015. According to Free Press, the Save the Internet Act would again classify broadband internet access service under Title II of the Communications Act as a telecommunications service

If you want a primer on net neutrality, including an explanation as to what "Title II" means, see Benton cardstack on Net Neutrality

Restoring Title II protections is a point of divergence between lawmakers. Republican lawmakers have proposed legislation that they claim supports net neutrality, but without relying on Title II authority. For many Democratic lawmakers, net neutrality legislation should be rooted in Title II. Why? Classifying broadband internet access service as a Title II telecommunications service 1) gives the FCC clear legal authority to enforce net neutrlaity rules, 2) has survived court review, and 3) affords the  FCC flexibility to maintain an open internt for tomorrow. At a February 7 hearing, former FCC Chairman Tom Wheeler said that claiming to be for an open internet but not Title II was like "saying one was for justice, just not the courts that enforce them."

The Save the Internet Act mirrors the language of a 2018 Congressional Review Act resolution which also aimed to undo Pai’s order. For those who may have forgotten, the CRA resolution passed the Republican-controlled Senate, but never got a vote in the Republican-controlled House. 

Partisan Reaction

Reactions to the Save the Internet Act were split along party lines, at both the FCC and Congress. 

Lawmakers unveil Save the Internet Act
Lawmakers Announcing the Save the Internet Act

Tina Pelkey, spokeswoman for FCC Chairman Ajit Pai, said:

The FCC’s return in 2017 to the bipartisan, light-touch approach to Internet regulation has been a success. This time-tested framework has preserved the free and open Internet.  It has promoted transparency in order to better inform consumer choice.  It has unleashed private investment, resulting in more fiber being deployed in 2018 than any year before and download speeds increasing by an astounding 36%.  And it has proven wrong the many hysterical predictions of doom from 2017, most notably the fantasy that market-based regulation would bring about ‘the end of the Internet as we know it.’  The Internet in America today is free and vibrant, and the main thing it needs to be saved from is heavy-handed regulation from the 1930s.

FCC Commissioner Jessica Rosenworcel said:

The FCC was on the wrong side of the law, the wrong side of history, and the wrong side of the American public when it rolled back net neutrality. The FCC’s deeply unpopular decision is being challenged in the courts, in statehouses, and in Congress. I applaud the effort announced today to reinstate open internet rules at the FCC. I’ll keep raising a ruckus to support net neutrality and I’m glad so many others are too.

FCC Commissioner Geoffrey Starks said:

The American people have demanded a free and open internet and I am pleased that Congress has responded with today’s legislation. I continue to believe that the FCC’s 2015 Net Neutrality rules were the right approach and the bill introduced today takes us back in that direction—a direction that will empower the FCC to keep the internet open as a gateway to opportunity for students, job seekers, consumers, creators, and businesses. They and everyone need, deserve and expect unfettered access to the internet.

“The Save the Internet Act puts consumers first by once again putting a cop on the beat at the FCC and protecting them from abusive and discriminatory practices by internet service providers,” said House Commerce Committee Chairman Frank Pallone (D-NJ).“This legislation protects a free and open internet, and I look forward to moving it through the Committee soon.” 

"The Save the Internet Act is clear and simple: overturn the Trump FCC’s wrongheaded decision and restore strong net neutrality protections. Whether in the halls of Congress or the halls of the courts, we will not stop fighting until net neutrality is fully restored. I thank my colleagues in the Senate and House for their partnership in this fight,” said Senator Markey.

"If we want to give small businesses, rural communities and independent creators a fair shot, we need to make real net neutrality the law of the land,” said Senator Ron Wyden (D-OR).

House Commerce Ranking Member Greg Walden (R-OR), Communications Subcommittee Ranking Member Bob Latta (R-OH), and Consumer Protection Subcommittee Ranking Member Cathy McMorris Rodgers (R-WA) said:  

Republicans and Democrats agree, a free and open internet is fundamental to our society. Right now, without Title II, the internet remains a key driver of economic growth. Let’s come together to ensure that continues, because all sides want a permanent solution. Instead of looking to the extremes, and discarding twenty years of bipartisan consensus, we can come together on shared principles to address blocking, throttling, and paid prioritization. Title II is not the answer, it paves the way for a regulated internet, an internet that does not protect the consumer nor allow for American ingenuity to thrive. We can do better.

Despite saying "we need a strong open internet law," Senate Commerce Committee Chairman Roger Wicker (R-MS) complained of "a degree of hysteria last year that didn't make sense and that has not turned out to be accurate" among Democrats. "The sky has not fallen, we're not using the internet one word at a time," he added. Chairman Wicker said that he wants to avoid any net neutrality protections relying on FCC enforcement of communications law authority traditionally relegated for conventional phone service.

Senate Majority Whip John Thune (R-SD) tweeted, “Dems earned three Pinocchios from @washingtonpost for last year’s bogus claim that @FCC’s #NetNeutrality repeal would grind the internet to a halt. How many will they earn today? I'm ready to work on a bipartisan legislative solution when they are, too.”

Reactions came pouring in from industry and public-interest groups as well. 

NCTA-The Internet & Television Association said:

We are disappointed that Democratic leaders would ignore growing calls for bipartisan action, and instead advance a highly controversial, partisan proposal that puts the internet under heavy-handed government control. Despite significant interest in Congress, our industry, and across America in pursuing legislation that would codify core net neutrality rules and promote internet growth, this latest approach forcing Title II regulation back on the internet offers no such hope. The internet does not need saving. To the contrary, it is thriving, with wireless companies investing in advanced 5G networks and our industry advancing our 10G platform to deliver speeds 10 times faster than what is available today. We remain committed to finding a real bipartisan solution that offers consumers stable and enforceable protections, without the unnecessary overreach of common carrier regulation, so that this exceptional network progress can continue.

INCOMPAS CEO Chip Pickering said

INCOMPAS has consistently said we would only support strong net neutrality legislation that includes the four corners of open internet protections – no blocking, no throttling, no paid prioritization, and strong interconnection. Last year we endorsed a Republican-sponsored net neutrality bill covering these protections, and encourage both sides of the aisle to work together on a future-focused solution.

Vice President of Public Knowledge Chris Lewis said

This proposal is simple yet strong because it relies on restoring the FCC rules that were upheld in court twice. The 2015 rules were carefully crafted to have a light touch on broadband through its many forbearances. It also avoids many of the pitfalls of other weak proposals this year that ask Americans to trade away important consumer protections at the FCC in exchange for only pieces of these net neutrality protections.

Jonathan Schwantes, senior policy counsel for Consumer Reports, said:

This legislation gives consumers exactly what they want, an internet that is an open marketplace for all, and that puts the American people ahead of huge cable companies and internet service providers. Millions of consumers urged the FCC to scrap its plans to repeal the strong net neutrality rules passed in 2015, but the Commission ignored the overwhelming public support. Today’s legislation will restore what consumers lost last year.

Gigi Sohn, a Distinguished Fellow at the Georgetown Law Institute for Technology Law & Policy, said:

Broadband providers and their friends on Capitol Hill have insisted for over 4 years that they support net neutrality, but not rules that opened broadband providers to rate regulation and local loop unbundling under Title II of the Communications Act of 1934. The Save the Internet Act is a separate law that codifies FCC authority over broadband and strong net neutrality rules but prohibits application of over 700 laws and regulations under Title II, including rate regulation and unbundling. Thus, industry and lawmakers on both sides of the aisle should support this bill and bring it to quick passage in both Houses of Congress.

“The Save The Internet Act is the only choice for any member of Congress wishing to protect the open internet and do right by their constituents,” said Free Press Action Vice President of Policy and General Counsel Matt Wood.

Looking Ahead

Speaker Pelosi (D-CA) said that the House will take up the bill in “a matter of weeks." 

On March 12, the House Communications Subcommittee will hold a legislative hearing on the bill which could be a precursor to markups and floor movement. 

The Senate may be the bigger hurdle.

“The bill will face an uphill battle in the Senate, where Republicans hold the majority,” wrote Makena Kelly for The Verge. “Beyond that, the act would be vulnerable to a veto from President Trump, who has been vocally skeptical of net neutrality in the past.” 

Forty-four of 45 Democratic Senators co-sponsored the bill; only Senator Krysten Sinema (D-AZ) has failed to sign on as of yet. 

Democrats are hopeful they’ll be able to convince enough Republicans to vote for the measure in order to avoid a filibuster, but simply getting the bill through committee may be a challenge. Last week, Chairman Wicker, whose committee has jurisdiction over the bill, said that net neutrality legislation will not be a priority for the committee this year. “May I say that I think there was a whole lot of hyperbole on [net neutrality] a year or so ago,” Chairman Wicker said. 

The question remains: Can we all agree on net neutrality legislation? Probably not all. But as the next few months unfold, enough of a Congressional majority may exist, finally, to give us what a majority of Americans want: strong, enforceable, net neutrality legislation. 

Quick Bits

Weekend Reads (resist tl;dr)

ICYMI from Benton

Coming Events for March 11-15, 2019

March 12 -- Legislating to Safeguard the Free and Open Internet, House Communications Subcommittee hearing

March 12 -- The Impact of Broadband Investments in Rural America, Senate Communications Subcommittee hearing

March 13 -- 2019 Nonprofit Technology Conference

March 14 -- Voters to Policymakers: Bridging the Digital Divide Includes Unlicensed Spectrum (ACT | The App Association)

March 15 -- FCC Open Meeting

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By Robbie McBeath.