Rep. Eshoo Outlines Title II-Lite Approach

Says it Should Apply to Mobile and Fixed Broadband

In a letter to FCC Chairman Tom Wheeler, Eshoo associated herself with Wheeler as an "unswerving defender" of a free and open Internet.

She says the rules should apply to both fixed and mobile broadband and should include not only a no blocking rule, but specific nondiscrimination rules preventing paid prioritization and "throttling" (slowing or degrading traffic with a carve-out for reasonable network management).

She argues those need the strong legal underpinning of Title II classification, to include at a minimum the Sec. 202 prohibition on unjust or unreasonable discrimination, but potentially also some consumer protection provisions elsewhere in Title II.

The court has suggested a ban on such discrimination can't be supported under Sec. 706 authority, which is the reason FCC Chairman Tom wheeler has suggested a Sec. 706 approach, but with a "commercially reasonable" standard for allowing some types of discrimination, specifically ones that are not anticompetitive--he has signaled paid prioritization would not pass muster under that standard.

"The claims that Title II is heavy-handed are simply unfounded," she told Wheeler. "The Commission already has the ability to tailor the law for market circumstances, deciding when and where to forbear from certain rules when those requirements are no longer necessary to protect the public. The Commission has used this forbearance authority often – removing many legal obligations from Title II services like wireless voice, for example, but never abandoning the core nondiscrimination protections that are at the heart of the Communications Act."

Eshoo floated the idea in an interview with C-SPAN's Communicators.

Eshoo, the ranking Democrat on the House Energy & Commerce Committee, said in that interview that one of the charges against Title II reclassification of Internet access is that it is a heavy-handed and old fashioned approach to regulation. She said she was sensitive to that criticism, saying you "really have to be cautious about heavy-handed regulation because we want innovation."

A hybrid Sec. 706 approach, with Title II as backstop or buttress, as been gaining some traction in net neutrality circles. It has not hurt that Wheeler has been regularly reiterating that Title II remains very much on the table, much to the chagrin of cable and telco ISPs.