D.C. Tackles Title II, Part II

Lawmakers Continue to Weigh in on Wheeler Decision
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Reaction continued to flood in as the scope of Federal Communications Commission chairman Tom Wheeler's proposed Title II-based network-neutrality rules became clearer.

AT&T sounded a note of hope amid what was generally a flood of red-faced Internet service provider reaction.

"We continue to believe that a middle ground exists that will allow us to safeguard the Open Internet without risk to needed investment and years of legal uncertainty," the company said.

That could be a reference to draft legislation that would block Title II but prevent paid prioritization, blocking and throttling, or it may reference changes in the draft, which will not be official until it is vetted, and perhaps edited, by the other commissioners and voted on by the full commission Feb. 26.

"We were able to find such a path in 2010, and will do our very best to seek such a path today," AT&T said, a reference to compromise net-neutrality rules adopted in 2010 but thrown out by a federal court after Verizon challenged them. "We also hope that proponents of Title II will consider that any FCC action taken on a partisan vote can be undone by a future commission in similar fashion, or may be declared invalid by the courts. The best way to ensure that Open Internet protections, investment and innovation endure is for people of good faith to come together on a bipartisan basis for that purpose. We believe such an opportunity exists today."

Signaling his disaffection, FCC commissioner Ajit Pai framed the Wheeler proposal as an Administration proxy. "Today, Chairman Wheeler announced that he will ask the FCC to adopt President Obama’s plan to regulate the Internet," said Pai. "I strongly oppose the President’s plan, which will raise consumers’ broadband bills, slow broadband speeds, and reduce competition. I look forward to sharing my concerns in more detail in the days to come.”

President Obama came out for Title II in a big way last fall. Wheeler had initially not proposed a Title II approach, but appeared to be tacking toward Title II at about the same time the president all but asked him to do so. Wheeler has said he began considering a change in course last summer, and that he and the president were on the same page, but Pai has expressed concerns about the administration's influence on an independent agency.

"While the Chairman has not yet shared the draft order, it is disheartening to see just how far he intends to stray from the hands-off regulatory approach that has allowed the Internet to thrive," said fellow Republican commissioner Michael O'Rielly. "Asserting that costly new regulations will encourage innovation and investment in broadband networks cannot make it so. This proceeding has already slowed broadband investment and deployment, and will inevitably drive up prices for American consumers."

“FCC Chairman Wheeler’s net neutrality proposal fails to protect the free and open Internet, instead, proposing sweeping changes to the laws governing our communications technology that will result in overregulation and years of fruitless litigation," said Rep. Darrell Issa (D-Calif.). chairman of the House Judiciary Committee. "I encourage the FCC to prevent this plan from going forward and to instead work with Congress to ensure our antitrust laws encourage robust competition in the marketplace.”

"Chairman Wheeler's proposal to regulate the Internet as a Title II public utility is an unprecedented expansion of FCC power with heavy regulation of the Internet for the first time," said Broadband for America honorary co-chairs John Sununu and Harold Ford Jr. "This proposal would stifle investment, innovation and consumer choice.  Worse, the Chairman's plan could have spillover effects into the broader Internet ecosystem and threaten Silicon Valley companies that rely heavily on the Internet.

"The Chairman's plan to widen the FCC's authority over interconnection contradicts previous assertions that this issue would be kept separate from net neutrality as well as the conclusions of prior FCC commissions, who have held interconnection issues as separate and distinct from net neutrality," they continued. "There is no market failure to justify such an aggressive intervention – in fact, the market is highly competitive with a track record of working efficiently and benefitting consumers."

Berin Szoka, president of TechFreedom, said Wheeler had “just shot himself in the foot.”

“He just admitted that what the FCC is doing is effectively rewriting the law to suit its political agenda," Szoka said. "Just last year, the Supreme Court blocked the EPA from doing much the same thing. The FCC was always going to face a difficult court fight, but Wheeler’s grandiose framing makes it even more clear that the FCC is heading for its third loss in court on net neutrality.”

The Future of Music Coalition, which represents musicians and independent labels, saw it quite differently.

“The fact that the FCC has chosen to reclassify broadband as a telecommunications service is a true watershed moment," said FMC CEO Casey Rae. "For a decade, musicians and independent labels have urged the Commission to do what it must to ensure that our creativity and expression isn’t disadvantaged based on the business or political preferences of just a few powerful ISPs. Today’s announcement sends a powerful signal to Internet gatekeepers that our voices matter."

So did Chris Keyser, president of the Writers Guild of America, West, which represents writers for films, TV, radio and the Internet.

“The news from FCC chairman Wheeler today, confirming his intention to reclassify broadband Internet access under Title II of the Communications Act, is a victory for all Americans," Keyser said. "Recognizing that the Internet should be regulated like the phone lines and that rules should be equally applied to wired and wireless Internet service means that the future of this democratic platform need not be put in the hands of a few powerful gatekeepers."

The new net rules include a general catchall rule in which the FCC can address potential complaints about ISPs favoring their own over-the-top video content, a big issue with independent content creators.

“Chairman Wheeler’s proposed rules would significantly benefit the American people and the Internet at large," said Rep. Mike Doyle (D-Pa.). "The proposal by the Chairman recognizes the need for strong enforceable rules that will protect consumers at the last mile and edge providers looking to provide innovative and competitive new services. It would enable the Internet to continue to be an open platform for innovation and investment."

The National Hispanic Media Coalition was among Wheeler's supporters as well.

"Today NHMC congratulates Chairman Wheeler and the countless hardworking and discerning FCC officials and staff members that have filtered through ISP talking points to reach the truth: that strong open Internet protections under Title II are critical to protecting equality in the digital age," said NHMC's EVP and general counsel Jessica J. González.

Ditto Rep. Frank Pallone Jr. (D-N.J.), ranking member of the House Energy and Commerce Committee, holding high the network-neutrality standard carried by his predecessor, Henry Waxman, but with the caveat that he was still willing to work on network neutrality legislation, which has been drafted by Republican House and Senate members.

"I want to commend FCC Chairman Wheeler for acting today to protect the free and open Internet," Pallone said. "The FCC must move forward with this initiative; however, I remain open to working with my colleagues in Congress to find a truly bipartisan legislative solution. Whether through legislation or FCC action, I will not stop fighting to make sure the American people have the strong Internet protections they deserve.”

The ACLU wanted to see the fine print, but liked the big picture.

“While we look forward to reviewing the details of the proposal, Chairman Wheeler’s decision to put forward legally defensible net neutrality rules is a landmark victory for free speech and the open internet," said Gabe Rottman, ACLU legislative counsel. "Without the strong foundation provided by Title II, our ability to speak and associate freely online without having to pay for fast lanes would be left vulnerable. This announcement is especially important for low-income, minority and rural Americans, who will be better able to access quality, affordable information services if the FCC approves Title II reclassification.”

Greenlining Institute energy and telecommunications policy director Stephanie Chen, its telecom legal counsel, said in a statement: “This is great news for all consumers, particularly for communities of color and low-income Americans, who would have the most to lose without strong action to prevent digital redlining. The battle isn’t over,. We can expect fierce pushback from the industry, and all of us need to let Congress and the FCC know that Chairman Wheeler is on the right track."

COMPTEL CEO Chip Pickering said: “Today, the Chairman took a momentous step in ensuring that consumers have access to an open Internet. We thank Chairman Wheeler for his leadership in providing a light-touch policy framework that will be a solid legal foundation for rules that prohibit blocking, discrimination and paid prioritization. This policy framework has worked successfully in the wireless industry, resulting in billions of dollars of investment and thriving competition. Investment across the entire Internet ecosystem will continue under this approach, as COMPTEL has recently highlighted in the record. We believe the Chairman’s draft Order will continue to promote and encourage broadband investment and competition, and our members that are building fiber to wireless towers, schools and libraries, and last-mile networks in their local communities, will benefit from the open Internet policy framework."

Sen. Al Franken (D-Minn.) a strong net-neutrality rule supporter, called Wheeler's decision “a big victory,” adding, “It’s is a win for consumers, for small businesses trying to compete with the big guys, and for innovation. It’s welcome news for all of us who have fought to keep the Internet free and open, and I’m so glad that the millions of Americans who spoke out in support of strong net neutrality rules have been heard.”

Fellow Democrat and Commerce Committee ranking member Bill Nelson (D-Fla.) also was positive. “The FCC is just doing its job," Nelson said. "And I support chairman Wheeler in his attempt to move ahead with rules to protect consumers and the openness of the Internet.

"I also look forward to working with Sen. [John] Thune, hopefully in a bipartisan way, as we consider any legislation in the future,” Nelson added, leaving open a legislative route.

“Today is an historic day – historic for consumers, innovators, entrepreneurs – for anyone who counts on the Internet to connect to the world," said Sen. Ed Markey (D-Mass.), who pressed the FCC to reclassify broadband. "These rules are a Declaration of Independence for the Internet. By applying Title II to broadband, the FCC is ensuring that there will be no Internet fast and slow lanes created by the big broadband barons. That access to communications services will be available for all Americans, including rural residents, seniors, and those who are deaf, blind or disabled. That consumer privacy is protected. That we expand consumer choice and promote Darwinian paranoia-inducing competition in the marketplace.  Reclassifying broadband under Title II is a major victory for consumers, for our economy, and for democracy."

The FCC got more than four million comments in its Open Internet docket, crashing the system and forcing the FCC to open up another comment avenue.

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