Rep. Henry Waxman (D-Calif.), ranking member of the House Energy & Commerce Committee, said Wednesday he supported FCC chairman Tom Wheeler's effort to reinstate open Internet rules, and his decision to vote on them May 15, but suggested he should institutionalize Title II as contingent authority if the rules are nixed again by the court.
He also said the FCC should make clear that if those rules do not stand up in court, it will use Title II authority to make them stick. "I believe the time has come for the FCC to stop putting vitally important open Internet rules in jeopardy through legal gymnastics."
He said he was OK with Wheeler trying to restore them without Title II for starters.
"I have no objection to the agency's proceeding under sec. 706 as the preferred basis of authority," he said, given that it may generate less opposition than Title II.
That will definitely be the case if the comments from cable operators are any indication. But, he said, the FCC should also use its undisputed Title II authority as additional authority to backstop the rules, perhaps mandating automatic reinstatement of no blocking and nondiscrimination (technically non-commercially reasonable discrimination) if the newest version of the rules were invalidated by the court.
Waxman said he applauded Wheeler for revising his original draft to "ensure the Commission's new rules will not legalize segregation of the Internet into fast and slow lanes under a 'paid prioritization' arrangement between broadband providers and content companies."
Actually, the original draft would not have necessarily allowed that, and the current draft does not necessarily prevent it. But the new draft does make it clear that the presumption, though rebuttable, is that paid prioritization is not commercially reasonable discrimination, which is the case-by-case standard. The old Internet rules thrown out by the court also included language indicating paid prioritization likely was not acceptable.
Not banning discrimination outright better squares the new rules with the advice from the D.C. federal court on better supporting them, and also allows for discrimination that may be in the public interest like, say, prioritizing health monitoring results.