A GOP Shift on Net Neutrality? Lawmakers Introduce New Legislation

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Key congressional Republicans unveiled a net neutrality bill on Friday that would prohibit Internet service providers from blocking or throttling content, or from prioritizing Web traffic from those sites that pay for speedier access to the consumer.

The draft legislation also would apply to both wired and wireless providers.

But the bill would also prevent the FCC from reclassifying broadband as a Title II telecommunications service, a regulatory maneuver designed to give the agency a more solid legal footing through which to issue strong net neutrality rules. FCC chairman Tom Wheeler has hinted that he may propose reclassification before the commission votes on new rules on Feb. 26.

The proposed GOP bill would head off such an approach and put limits on the FCC’s authority over Internet service.

Yet the legislation, from Rep. Fred Upton (R-Mich.), Sen. John Thune (R-S.D.) and Rep. Greg Walden (R-Oregon), is notable because in the past, congressional Republicans have expressed doubts about the need for net neutrality rules at all. That some key Republicans are now backing some key principles long favored by net neutrality advocates marks a change in the nature of the debate.

Their legislation would ban blocking and throttling of content, as well as paid prioritization. The latter has been the focus of particular attention, with the fear being that broadband service providers would start charging sites for improved access to the consumer, essentially creating a tiered structure on the Internet that favors companies that have the means to pay.

The legislation also would require ISPs to disclose their network management practices.

“This thoughtful path forward ensures that consumers remain number one and in control of their online experience,” said Upton, chairman of the House Energy and Commerce Committee. “By clearly outlining the appropriate rules of the road, and leaving 20th century utility regulation behind, we can be sure that innovators continue full throttle in bringing remarkable new technologies to all Americans.”

The legislation would allow ISPs to offer “specialized services,” which it defines as those offered over the same network as broadband service. Reflecting concerns that allowing such services would create a loophole, the bill prohibits specialized services from being offered in a way designed to “evade” the purposes of the net neutrality rules.

The House’s Communications and Technology Subcommittee and the Senate Commerce Committee have each scheduled net neutrality hearings on Jan. 21. Thune, who chairs the Senate Commerce Committee, said that he continues to have discussions with Sen. Bill Nelson (D-Fla.), the ranking member, about the legislation.

FCC spokeswoman Shannon Gilson said, “Chairman Wheeler shares the goals of protecting and preserving an Open Internet. Next month, the commission will consider strong rules to protect consumers, innovation and competition online. We will continue to engage with Congress as we move forward.”

Common Cause, which has been pushing the FCC to reclassify as a way to adopt strong net neutrality rules, is still urging Senate Democrats not to support legislation that would undermine the FCC’s authority — saying that it would create further delay.

But in a statement, Common Cause’s Todd O’Boyle noted the significance of GOP support for some of the major net neutrality principles. “It’s always welcome news when former opponents see the light of day: Open Internet safeguards are essential to online competition and free expression,” he said. “We agree that strong rules are needed, and the fastest, surest way to get there is for Congress to support reclassification at the FCC.”

Another group that has pushed for reclassification, Free Press, said that the legislation legislation that “sounds good on the surface, but is really designed to stop the FCC from passing net neutrality rules in February.”

Public Knowledge senior VP Harold Feld called the legislation a “good faith step forward,” but expressed concerns that it would prevent the FCC from exercising authority, particularly when it came to monitoring anti-competitive conduct that might arise as broadband develops. Moreover, he noted that the bill as written would perhaps still contain loopholes that would still enable ISPs to offer “fast lanes” to those willing to pay.

The legislation also would prevent the FCC from taking action on another hot-button issue: publicly financed Internet service. Next month, the FCC also will vote on a proposal to use its authority to preempt laws in states that prevent cities and other public entities from offering their own Internet service, in some cases in competition with commercial providers like Comcast and AT&T. Major Internet service providers oppose such a move.

Update: An Obama administration official said that they are still reviewing the text of the bill, but believe that legislative action is unnecessary, given that the could reclassify and have the authority to draw up net neutrality rules. The official also expressed concerns that legislation would strip the FCC of its existing authority.