Sen. John Thune (R-S.D.), chairman of the Senate Commerce Committee, told the FCC’s five commissioners on Wednesday that the recently passed net neutrality rules would actually do the opposite of what is intended: protect an open Internet.
Last month, the FCC voted 3-2 in favor of reclassifying Internet service as a Title II common carrier, a regulatory maneuver to give the agency authority to ban broadband providers from blocking or throttling content. They also prohibited ISPs from charging companies for speedier access of their content to subscribers.
But calling the FCC’s approach “one of the most significant and controversial decisions in the agency’s history,” Thune accused chairman Tom Wheeler, commissioner Jessica Rosenworcel and commissioner Mignon Clyburn of taking the “most radical, polarizing and partisan path possible.” The FCC’s rules have drawn scorn from the cable and telecom industry, who say the Title II approach is regulatory overreach, as well as from congressional Republicans.
“Instead of working with me and my colleagues in the House and Senate on a bipartisan basis, to find a consensus, the three of you chose an option that I believe will only increase political, regulatory and legal uncertainty, which will ultimately hurt average Internet users,” Thune said in his opening statement at a hearing on FCC oversight. “Simply put, your actions jeopardize the open Internet that we are all seeking to protect.”
Thune has co-authored draft legislation that would also ban blocking and throttling of content, as well as paid prioritization. But it would also strip the FCC of a significant degree of authority over broadband, including reclassification of Internet service as a Title II common carrier.
Thune acknowledged that the draft bill was “not perfect,” while also expressing a desire to win bipartisan support.
There has been a hint of receptiveness from some Democrats. Sen. Bill Nelson (D-Fla.), the ranking member on the committee, said that he was open to “true bipartisan congressional action,” as long as it retained consumer protections and did not undercut the FCC’s role.
But he also told Thune that, given the flood of response to the FCC’s vote, “We are going to have to let this percolate a bit before we can have this consensus you are talking about.”
One of the more controversial provisions of the FCC’s new rules is a “general conduct rule” that allows the FCC to step in when new marketplace activity threatens the openness of the Internet. Wheeler says it allows the agency to act as a “referee on the field,” but critics have taken aim at that provision as opening up the agency to limit such things as usage-based pricing. And even though the rules limit the FCC from setting prices, dissenting commissioners have suggested that the FCC could take action if consumers complain that their rates are not “just and reasonable.”
Wheeler defended the new rules as providing certainty for consumers, entrepreneurs and financial markets, noting that a similar approach was applied to the wireless voice industry, which then saw $300 billion in investment.
Sen. Ed Markey (D-Mass.) noted the opposition that cable companies had to allowing telecom companies to provide video service. “They wanted the monopoly,” Markey said.
The FCC’s action generally enjoyed the support of Internet content sites and app makers, including Twitter and Netflix.
“We are at a crossroads here where the investment dollars … are not the big companies but the thousands of little companies that benefit from net neutrality,” Markey said.
The hearing did highlight some fissures on the commission, particularly between Wheeler and commissioner Ajit Pai, who with Michael P. O’Rielly voted against the net neutrality rules.
Pai accused Wheeler of not following through on efforts to reach consensus, leading to 3-2 votes on a number of major issues. But Wheeler cited cases where he has adjusted course to do just that, and suggested that it was Pai who was unwilling to compromise.
The hearing was one of several expected on Capitol Hill in the next few weeks that will touch on the FCC’s net neutrality rules. On Tuesday, Wheeler appeared before the House Oversight Committee, where he was grilled about the influence that the White House had over the FCC’s action, particularly after President Obama threw his support behind Title II reclassification.
The chairman of the oversight committee, Rep. Jason Chaffetz (R-Utah), said that the FCC’s inspector general was investigating the process the FCC took to come up with the new rules. Wheeler said that although his approach shifted on net neutrality, what was especially convincing was that there were a number of signs that the industry would continue to invest heavily even with the Title II approach.
On Wednesday, Wheeler said that the FCC would be willing to work with Congress as they craft legislation by providing them with expertise from those who favored the approach and those who were opposed to it.
“This is going to be a classic situation of ‘We will report, you decide,'” Wheeler said.