Depending on your point of view, Congress has been either promising or threatening to come up with a legislative solution to net neutrality, which would do an end-run around the current FCC debate. As of this afternoon, the first draft of the bill is out and the first hearings are on the schedule. So how does it look for fans of an open internet?
The first draft of the bill that Sen. John Thune and Rep. Fred Upton said earlier this week that they would be creating is now available.
The text (PDF), is a discussion draft, not yet formally introduced into either chamber. But it’s the draft that the House and Senate Commerce Committees will be looking at when they have their hearings and it basically exists to do one big thing: strip the FCC of its current and future authority to regulate broadband access in any way.
The first section of the bill starts out with the actual open internet rule. It specifies that, subject to reasonable network management, broadband providers:
- may not block lawful content, applications, or services
- may not prohibit the use of non-harmful devices
- may not throttle lawful traffic by slectively slowing, speeding, degrading, or enhancing traffic based on source, destination, or content
- may not engage in paid prioritization
That sounds like a lot of the FCC’s stated goals, but as analysts at Public Knowledge have pointed out, the proposal is written in such a way as to leave tons of loopholes for ISPs to engage in bad behavior in the future.
But the proposed draft bill then goes farther, and explicitly removes the authority of the FCC to regulate internet openness at all. The text rigidly defines broadband as an information service, then forbids regulators from using either Section 706 or Title II of the Communications Act — the two options the FCC has before it — to regulate broadband.
As far as the internet is concerned, the FCC instead is reduced to a complaints board, which “shall enforce the obligations … through adjudication of complaints alleging violations” but “may not expand the Internet openness obligations … whether by rulemaking or otherwise.”
Section 706 is the bit of law under which the FCC would have authority to pre-empt state laws forbidding the construction or expansion of municipal, fully or partially publicly-owned broadband networks. If the FCC can’t use section 706 to regulate broadband, they probably can’t make their move on that, either.
Massachusetts senator Ed Markey, a consistent, vocal supporter of net neutrality, municipal broadband, and related pro-competition regulation, issued a statement calling the proposal the “Big Broadband Baron Act.”
Of the draft bill, Markey said, “It is a legislative wolf in sheep’s clothing, offering select few safeguards while undermining basic consumer, privacy and accessibility protections. It would harm low-income, disabled, senior and rural consumers, and undermine competition in the telecommunications marketplace.”
But wait — what of those hearings?
Both the House and Senate committee hearings on the open internet will be taking place next Wednesday, January 21. The agenda and witness list for the Senate version isn’t out yet, but the House’s is. And among the expert witnesses the House Commerce Committee is calling to testify on the best way to protect and promote an open internet are Michael Powell and Meredith Attwell Baker.
We have written about both before. Powell (son of former Secretary of State Colin Powell) was once chairman of the FCC, the position currently held by Tom Wheeler. He is now the president and CEO of the NCTA, the trade and lobbying association that represents cable and telecom companies like Comcast and Verizon.
The NCTA this year has been very busy astroturfing and publishing op-eds about why we don’t need net neutrality. He’s also the one who admitted that usage-based pricing and data caps aren’t about alleviating network congestion, but instead are about making more money.
Baker also once was an FCC commissioner. She was one of the four commissioners (of five) who voted in 2011 to allow Comcast to purchase NBCUniversal … after which she promptly accepted a cushy new job with the newly merged Comcast/NBCU.
Baker is no longer with Comcast. Instead, she took over as the president and CEO of the CTIA — the wireless industry’s answer to Powell’s NCTA. The CTIA has funded some of the same odious op-ed arguments that its wired peer has engaged in this year.
The two will be joined by other executives representing both the established internet corporate presence (Amazon) and the scrappy modern start-up (Etsy), as well as Dr. Nicol Turner-Lee of the Minority Media and Telecom Council, a nonprofit that advocates for diversity and civil rights in the media.
The FCC is unlikely to stop its current rulemaking proceeding while Congress works on the proposal.