Judiciary Debates Net Neutrality

Sens. Get Earful On Both Sides Of Issue

The Senate Judiciary Committee heard from both sides of the network neutrality debate Wednesday in a hearing on the implications of the FCC's efforts to restore network neutrality rules — deadline for comment on that effort was Sept. 15). Sen. Richard Blumenthal raised the specter of ISP's suppressing speech, while Sen. Ted Cruz, suggesting things don't go better with net neutrality, likened FCC regs to nanny-state restrictions on the size of soft drinks.

Democrats pushed for Internet rules of the road, while Republicans argued the virtuous cycle of investment and innovation would be threatened.

Net neutrality fan Sen. Richard Blumenthal (D-Conn.), who is no fan of paid priority, went beyond the economics to argue about speech concerns. He suggested that under such a regime, Comcast could favor its NBC News by making sure subs got it faster than other news sites.

Witness Robert McDowell, former Republican FCC chairman and now with Wiley Rein, said that there were already ways to deal with that hypothetical under antitrust and breach of contract laws and terms of service protections. He pointed out that ISPs have made enforceable network management promises against blocking or unreasonably discriminating, something the ISPs have pointed out the FCC can enforce under the FCC's Open Internet transparency rule still on the books.

Witness Nuala O'Connor of the Center for Democracy & Technology, who said Blumenthal's point about content discrimination was a central issue, said she thought there were "precious few" antitrust remedies for small artists or startups with network neutrality complaints.

Given the debate over whether the FCC should use Title I or Title II authority, Sen. Mazie Hirono (D-Hawaii) asked whether Congress should be talking about a new Title.

Sen. Hirono: Should we be talking about a new, more flexible, Title, rather than Title I or the relatively heavy hand of Title II? O'Connor said her group would welcome that.

Sen. Ted Cruz (R-Tex.) hammered on the FCC and net neutrality regs in general. He said the FCC's "latest adventure" in net neutrality was "nanny-state" regulation that would only serve to stifle the 'net. He called the new rules to a wolf in sheep's clothing, and likening the FCC dictating how the 'net should run with a New York mayor "telling us how big our Coke can be."

Sen. Al Franken (D-Minn.), one of the strongest backers of the rules, said network neutrality was crucial to small business, and that paid priority would squelch innovation and be a "huge change" from the current model. Franken said new rules were all about preserving the Internet as it is today.

Sen. Jeff Flake (R-Ariz.) said he would be wary of using government regs to maintain the status quo. Imagine if a tech company said it could succeed by remaining as it is. It it stays the same, it is not prepared for innovation, he said.

Sen. Orrin Hatch (R-Utah) said he thought net neutrality regs would "foul up the whole Internet." He said there had been an explosion of aps, products and service, and without government regulation. What is broken, he asked. What needs fixing?

McDowell said nothing needed fixing.