In the past month, Republicans have completely reversed themselves on net neutrality.
But now, top GOP lawmakers are frantically working on net-neutrality legislation that’s even stronger than what many Democrats supported in previous years.
It’s as though Republicans were to suddenly decide to champion Obamacare.
At this point, pushing strong net-neutrality legislation is the only hope that Republicans have to keep the Federal Communications Commission from classifying Internet providers as public utilities like phone companies. They fear that move would strangle the Internet with even more onerous regulations.
“Clear and reasonable rules are what every business and consumer needs and expects — this also applies to the Internet,” Senate Commerce Committee Chairman John Thune said in a statement late Wednesday.
Thune outlined 11 principles for net-neutrality legislation that would bar Internet service providers from blocking websites, selectively slowing down traffic, or creating special “fast lanes” for sites that pay more. Importantly, the rules would apply to Internet connections both at home and on mobile devices.
A spokesman for the House Energy and Commerce Committee said Chairman Fred Upton and Rep. Greg Walden, the chairman of the Communications Subcommittee, have been working with Thune and are on board with the new principles. The House and Senate Commerce committees have planned hearings for next Wednesday as well.
WHY THE CHANGE OF HEART?
The FCC first enacted net-neutrality rules in 2010, but a federal court struck them down early last year. Internet activists argued that the only way the FCC could enact new rules that could hold up in court would be to invoke its broad powers under Title II of the Communications Act.
At first, FCC Chairman Tom Wheeler proposed new rules that wouldn’t have relied on Title II, but he reversed himself in the face of a massive public backlash. In November, President Obama stepped in and urged Wheeler to reclassify broadband as a “telecommunications service” under Title II.
Broadband providers fear that the net-neutrality fight is about to result in the FCC seizing sweeping powers over their business operations.
The FCC could use Title II to not only oversee how the providers manage traffic, but also set retail prices, impose new government fees, and determine which customers they have to serve. Wheeler has said he would waive unnecessary provisions of Title II, but that has been little comfort to the broadband providers.
The Republican net-neutrality bill would bar the FCC from classifying Internet service under Title II. Instead, it would grant the FCC new authority only to deal with net neutrality.
“Clear statutory authority from Congress is necessary to update FCC authority for the Internet Age, escape court challenges, and avoid regulatory overreach from outdated laws,” Thune said.
Broadband providers like Comcast and Verizon are willing to accept net neutrality rules as long as it means they can avoid Title II.
Brian Dietz, a spokesman for the National Cable and Telecommunications Association, which represents the major cable providers, said the group is “encouraged” by the discussions in Congress. “While we will reserve judgment on specifics, we believe Congress can play a constructive role in offering meaningful open Internet rules,” he said.
The GOP legislation would also neuter another source of FCC authority over the Internet. The FCC’s 2010 net-neutrality rules relied on Section 706 of the Telecommunications Act, a nebulous provision that says the agency can “promote the deployment” of broadband.
The Republican principles state that new legislation should clarify that Section 706 doesn’t actually give the FCC any power. But the FCC has been using Section 706 for more than just net neutrality. Without Title II, it’s the only other real tool the FCC has to regulate Internet providers.
Killing Section 706 would undercut the FCC’s plan to preempt state laws that limit cities from building their own broadband networks. Just this week, Obama urged the FCC to overturn the state restrictions to ensure that local governments can deliver high-speed Internet to their residents if they choose. The FCC plans to vote in February on petitions from Chattanooga, Tenn., and Wilson, N.C., to invoke Section 706 to preempt their states’ laws against city-owned broadband.
The issue could prove to be a stumbling block to compromise. But the Republicans haven’t even formally unveiled their legislation yet, so there is still time for negotiation.
HOW WILL THE RIGHT AND LEFT REACT?
Republican leaders in both chambers are bending over backwards to find a compromise on net neutrality. But will other conservatives be willing to give in so far?
Republican Sen. Ted Cruz of Texas, a member of the Commerce Committee, once memorably referred to net neutrality as “Obamacare for the Internet.” But Phil Novack, a spokesman for Cruz, downplayed any rift with Republican leaders.
“One of the biggest threats to the Internet is the prospect of turning it into a public utility under Title II FCC regulation,” Novack said. “Sen. Cruz is optimistic that the committee is looking at ways to avoid this serious threat and looks forward to having a vigorous discussion on how we can best ensure the Internet remains a forum for freedom and innovation.”
Even if Republicans can unite their caucus behind a strategy to avoid Title II, Democrats might not see any reason to help them.
Sen. Bill Nelson of Florida, the top Democrat on the Commerce Committee, confirmed that he is discussing the issue with Republicans.
“I look forward to working with them to ensure any such changes keep the Internet free and open, and don’t stifle innovation,” he said in a statement. “Because I believe consumer protection should come first, the FCC must have flexible enforcement authority.”
Other Democrats are less supportive.
Sen. Al Franken, a Minnesota Democrat, blasted out an email to supporters Thursday, warning them that Republicans will push a “watered-down bill that’s exactly … what the opposition and their lobbyists want.”
In an op-ed on The Huffington Post, Craig Aaron, the president of activist group Free Press, admitted that “on the surface, the Republican proposal looks almost reasonable.”
But don’t be fooled, he warned.
“This proposed legislation should be exposed for what it is: a cynical effort by the cable lobby to prevent the FCC from enforcing the law to keep the Internet open. Why would we trust the fiercest opponents of Net Neutrality to protect our Internet freedom?”
Aaron and Harold Feld, the senior vice president of consumer advocacy group Public Knowledge, both expressed concern that the Republican principles don’t seem to address potentially anticompetitive forms of Internet traffic discrimination, aside from blocking and throttling.
In a recent interview with tech news site CNET, the FCC’s Wheeler said Congress “obviously has a role.” But he isn’t planning to delay a vote on his rules, which is currently scheduled for Feb. 26.
“We have been at this for a year, and it’s time to shoot,” Wheeler said.