Policy

Net Neutrality: Rush Hour in D.C.

Five big takeaways from the FCC comment-closing milepost 9/04/2017 8:00 AM Eastern

WASHINGTON — It’s been like rush hour inside the Beltway as internet service providers get in what they hope are their parting shots at Title II classification, and defenders of the common carrier-based rules try to warn of impending doom if the reclassification is reclassified back to Title I.

Meanwhile, Hill Republicans continue to try to push for bipartisan legislation, which is the only kind that will fly in the Senate, where the real action is likely to take place. Here are five key takeaways from that rush of activity.

Closing Time: The Federal Communications Commission’s deadline for filing comments passed Aug. 30, with almost 22 million comments filed since the docket opened July 3. The FCC’s unwillingness to expurgate the comments led to more four-letter words being offered for public consumption by the FCC than would be found in a decade’s worth of indecency complaints against broadcasters.

And while the docket is officially closed, the FCC will continue to accept input. It is just that the late comments will not be included in the official record upon which the FCC is supposed to base its decision.

Numbers Game: A new analysis filed with the FCC last week found that of those almost 22 million comments, the vast majority were either duplicates or of dubious origin. The analysis, which was conducted by analytics company Emprata for the ISP-backed group Broadband for America, found that of the 21.766 million comments assessed, more than 20.684 million “appear to be artificial, international filings, form letters and duplicative submissions.”

Apple Backs Core ’Net Protections: In Apple’s first public position on the issue — it has kept its net-neutrality cards close to the vest — the company signaled it was open to considering a non-Title II path as long as it was a legally sustainable route to the same protections the current rules provide.

“Apple remains open to alternative sources of legal authority, but only if they provide for strong, enforceable and legally sustainable protections, like those in place today,” the company said, according to a copy of the filing, billed as its first FCC filing in the proceeding.

Those protections currently in place are no blocking, throttling or paid prioritization, which some ISPs have argued can be legally sustained using non-Title II authority, and Maureen Ohlhausen, the Federal Trade Commission’s acting chair, argued can be enforced by the agency on a case-by-case basis. Net-neutrality activists say no way. Apple’s support of no paid “fast lanes” coincides with its heavying up in the online video business.

FTC to the Rescue: Ohlhausen said last week that the agency has the muscle to protect against harmful online conduct. In an op-ed in The Hill newspaper, Ohlhausen said that if the FCC repeals what she called heavy-handed net-neutrality regulation, the FTC would be there to pursue harmful conduct on a case-by-case basis, along with state attorneys general and private plaintiffs — the FTC’s power is to file suit against companies it concludes have broken their pledges.

She said a case-by-case approach “better protects consumers and promotes innovation because it focuses agency resources on actual consumer injury and doesn’t require regulators to predict the future.”

View From the Hill: The House Energy & Commerce Committee postponed its planned Sept. 7 hearing on net neutrality — “indefinitely,” suggested one source — and the prospects for congressional action remain cloudy at best.

Republicans are trying to get both sides together on a bill, but sources said Democrats have not been part of those talks and aren’t feeling the bipartisan love. A bipartisan House bill is needed to avoid being stymied in the Senate, where a single senator — like, say, Title II cheerleader Ed Markey (D-Mass.) — could hold it up.

The House hearing is said to have been postponed because neither ISPs nor edge providers wanted to send their CEOs, which had been the request from committee chair Greg Walden (R-Ore.), instead sending their association heads to make their respective pitches.

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