Sen. Thune Warns FCC Against 'Desperate' Title II Path

Commerce Chair Says Only Congress Can Settle Issue of Net Authority
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Sen. John Thune, chairman of the Senate Commerce Committee, warns that reclassifying Internet access under Title II regs is a "desperate path" being pushed by a determined FCC chairman and "increasingly imperious" President that would upset the "light-touch" regulatory framework put in place during the Clinton Administration.

That came in a speech to the American Enterprise Institute Wednesday (Jen. 28) outlining tech policy priorities in the year ahead, according to a copy of the prepared text obtained by Multichannel News.

Thune also signaled he would launch an effort to revamp the Communications Act, just as the House has under Republican leadership.

In his speech, Sen. Thune says that Title II would give the FCC unlimited ability to regulate the Internet: "The legal and regulatory uncertainty about what the FCC can and will do, however, has become a major problem for people both at the edge of the Internet and at its core. Congress, however, is the only entity that can settle this uncertainty, and I believe we can do so in a way that will empower the FCC with the strong tools many believe are needed to protect the Internet while simultaneously ensuring the agency is appropriately limited in its reach and authority."

Thune points to the open Internet legislation he has proposed with House Republican leaders as an alternative to FCC chairman Tom Wheeler's effort to reverse a successful policy. "Congress should reassert its perogative to make policy," according to his speech. The legislation is an effort to head off a vote on Feb. 26 on new open Internet rules Wheeler has strongly suggested will be based in Title II reclassification, as the President has called for.

Title II approach with forbearance--not applying many elements of the common carrier rules--would lead to court challenges and likely be found illegal. The courts have already thrown out two FCC efforts at enforcing network neutrality, a point Thune also makes in the speech.

At a Senate Commerce Committee hearing last week on net neutrality, Amazon public policy exec Paul Misener said he had concerns about Title II, and praised the Senate bill's principles -- preventing blocking, throttling and paid prioritization -- and the idea of capping FCC authority.

Thune points to those comments in his speech as a means to buttress his argument for legislation. He promises to work with his colleagues on both sides of the aisle on new rules (no Democrats have signed on to the net neutrality legislation as yet, but Republicans have signaled they are willing to work with them).

Thune says one reason the FCC is poised to reclassify Internet access under Title II regs is because of obsolescent communications laws that did not make its authority clear: "Updating the Communications Act is no small undertaking, but it would be a dereliction of duty if Congress did not at least try to modernize the law."

The House has already launched an update effort. "In the coming months, I intend to begin a parallel effort in the Senate Commerce Committee to explore which of our telecom laws need to be modernized and how best to do so," according to Thune.

That update could take the form of an omnibus bill like the 1996 Telecom Act, or be broken up into smaller, issue specific piece Thune sees the possibility for bipartisan consensus on spectrum policy, pointing to the runaway success of the AWS-3 auction. He called for freeing up more spectrum, licensed and unlicensed, as quickly as possible. He said that government users and private companies will need to "play nicer with each other" and in closer proximity. "Both like having distinct frequencies to themselves, but they need to start getting used to living much closer to each other—think rowhouses and condo buildings rather than sprawling, spread-out suburbs," he says.

He agrees with the White House's "all-of-the-above" approach to spectrum, something FCC commissioner Jessica Rosenworcel has emphasized.

Other issues on his plate include FCC structural reforms and video policy. That could mean a resurfacing of the Local Choice proposal introduced by Thune and then Senate Commerce Committee chairman Jay Rockefeller (D-W. Va.) as part of satellite reauthorization legislation.

That is the proposal, opposed strongly by broadcasters, that would have made cable operators middlemen in a negotiation between TV stations and cable customers over what channels the latter wanted to pay for as part of their cable bundles. "Our proposal was set aside in the interest of passing a reauthorization of satellite TV laws before their expiration," according to Thune. "[B]ut I remain committed to exploring updates to our video laws that more accurately reflect how Americans consume video content today."

Cybersecurity will also be high on his radar. Thune suggests bipartisan collaboration should be possible, pointing to the bill he co-sponsored with Rockefeller that passed last December aimed at boosting R&D and the development of voluntary cybersecurity standards.

The senator is concerned about the issue of Internet governance and says he plans to hold a hearing with National Telecommunications & Information Administration chief Larry Strickling and ICANN CEO Fadi Chehade to discuss the status of NTIA's plan to transfer oversight--NITA has called it essentially of Internet domain naming functions (ICANN) -- to a global multistakeholder model.

NTIA has said it would not turn over the Internet naming function to a government-led or controlled model, which is the main concern of critics of the hand-off.

"I have been working with Senator Marco Rubio to hold the Administration accountable to its promises and to urge ICANN to implement accountability reforms as part of the IANA transition process," Thune says in his speech. "If these goals cannot be met, the Administration should simply renew the IANA contract indefinitely."

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