Lawmakers Claim Congress Better At FCC’s Job Than FCC Is, Plan To Introduce Net Neutrality Proposal

Large swaths of Congress are not pleased with the FCC’s moves towards regulating net neutrality, and they got even less pleased after the President threw his weight behind Title II and the FCC started to move in that direction. With the FCC set to vote in February, time for Congress to stick its oar in is running out. So now, in addition to the proposed bill that would bar the FCC outright from using Title II, there will soon be proposed new legislation afoot that seeks to do the FCC’s job for it, without letting the FCC in at all.

The new bill hasn’t been written yet, but its coming, according to key lawmakers Senator John Thune and Rep. Fred Upton. Thune and Upton are, respectively, the new chairmen of the Senate and House Commerce Committees, so they get to set the committee agendas. And they both want very badly to make sure that the FCC is not allowed to regulate broadband ISPs as Title II communications companies.

In an op-ed today for Reuters, Thune and Upton try to lay out their argument for why letting the Federal Communications Commission actually regulate communications would be a disaster, and why Congress is better-placed to act instead. Their reasoning has a lot of grand rhetoric in it, but not a whole lot of actual substance.

They start in fine form, proclaiming: “We need unambiguous rules of the road that protect Internet users and can help spur job creation and economic growth.”

This is bland, but true. We do badly need clear, direct, universally-applied rules that cover all ISPs, large and small, and protect all consumers, including individuals, small businesses, and even large corporations.

The lawmakers then propose to prohibit blocking and throttling data, and to “ensure that Internet service providers could not charge a premium to prioritize content delivery.” That sounds like net neutrality, all right. Exactly what the FCC has been trying to do, in fact. So far, so good.

But then it starts to get a lot more hazy.

Upton and Thune claim that the FCC has “limited ability” to establish the kind of rules that consumers need. But that’s okay, they say, because Congress can, and Congress does, and therefore Congress should.

The argument relies heavily on two industry talking points. The first is that Title II is so anachronistic and outmoded — “a set of rules conceived in the Franklin D. Roosevelt era” — that it cannot possibly be adapted to the fast, digital, iPace of the modern age:

Our nation’s current technology and telecommunications laws were meant for an era of rotary telephones, brick-sized cellular phones and expensive long-distance service. By acting legislatively, we can set aside the baggage and limits of an antiquated legal framework and work with the Federal Communications Commission to ensure the Internet remains the beacon of freedom and connectivity that defines America in the 21st century.

Congress was founded 48 years before the invention of the telegraph, and yet that doesn’t seem to have stopped them from passing the Communications Acts of 1934 and 1996. Nor has it prevented them from passing laws about more historically recent needs like automobiles, aircraft, and airwaves.

So sure, Title II is an old piece of law, but so is the Constitution. And both have proven to be adaptable: Title II has many sections, and the FCC has the ability to cherry-pick which ones apply to broadband services if broadband is indeed reclassified. The commission can and almost certainly will skip any, like railroad-specific clauses, that don’t actually apply to the internet.

The other big talking point Thune and Upton rely on is from a widely-publicized study claiming that using Title II will somehow force ISPs to charge consumers an extra $15 billion in taxes. Fees! Bills! Won’t anyone think of the poor beleaguered consumers?!

The number in study they cite, however, has been debunked. While it is true that in an absolute worst-case scenario consumers might be on the hook for increases, the figure is a combination of conflation and hyperbole — and some of those hypothetical increases would have come from Congress, not the FCC. The Senator who wrote the relevant law literally called the $15 billion claim “baloney.”

Meanwhile, over here in realityville, broadband prices are already constantly jumping, and for no good reason except that they can. The absence of competition in most markets means that American broadband is already slow and expensive compared to many other developed nations.

Even if you measure American broadband success by the amount of money large corporations spend and make off it, as Comcast and Verizon and AT&T do, the claims that Title II will halt that progress are dishonest, as even those companies have reluctantly admitted.

Upton and Thune never outright say why they feel the FCC is so outmoded and inflexible, other than the fact of the commission contemplating a ruling that some of their biggest donors really don’t like. (Comcast was Upton’s top donor in 2014, contributing $44,500 to his campaign.) If the Federal Communications Commission is indeed so manifestly unsuited to regulating communications under the Communications Act, it is because of the toolbox that Congress has given it.

The op-ed points to that potential weakness that Congress itself has helped create by reminding us all that “this approach will perpetuate years of litigation and even more uncertainty for consumers and job creators,” and that part is true. Verizon and others have threatened repeatedly to sue the regulators if the FCC tries to regulate them, and the agency expects the challenge.

But the fact that large corporations will throw a temper tantrum at regulators for regulating is the worst possible reason to decide not to act. Parents don’t give their toddlers cookies every time a child fusses, and nor should Congress hand over the public interest to corporations every time a company’s legal team starts to make a ruckus.

The op-ed concludes, “Enduring, long-term protections for our digital freedoms are something we should all support.” They are, and we should. But proposals that prohibit the FCC from doing the job it exists to do scuttle those protections before we even get them.

Congressional proposal offers Internet rules of the road [Reuters]