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FCC’s Net Neutrality Rules Targeted in Senate Hearing

FCC chairman Tom Wheeler argued that investment in broadband has actually risen since the agency passed its landmark net neutrality rules last year, contradicting fellow commissioner Ajit Pai’s contention that the regulations have stifled Internet growth.

Their exchange was one of the highlights of an oversight hearing on Wednesday before the Senate Commerce Committee.

Pai, who along with Commissioner Michael O’Rielly opposed the net neutrality rules, argued that investment slowed down in 2015, particularly among smaller Internet providers, after the FCC, in approving the rules, reclassified the Internet as a Title II telecommunications service. He said that some companies are putting their investments abroad or, in the case of Verizon, using their capital to buy AOL.

“With all due respect to my colleague, what he has just portrayed as facts are not,” Wheeler responded. He said that investment in broadband increased, along with a 13% jump in fiber investment, as well as Internet usage and increased revenue per subscriber.

But Pai insisted that is not the case. “The FCC’s policies have failed. The administration’s policies on broadband has failed,” he said.

“We are not seeing a decline in broadband infrastructure investment. You can say it and say it and say it, but that does not make it a fact,” Wheeler responded.

Pai said he would offer up sworn declarations from Internet providers showing how the new rules had caused them to slow their investment. But Wheeler, too, offered to submit corporate statements on Internet investment, which would face Securities and Exchange Commission penalties if they were misleading.

Pai, however, said that it was “striking to see what CEOs with pending mergers before the FCC will say about the FCC’s top priorities.”

“I’m talking about AT&T, Comcast and companies like that,” Wheeler replied.

“Who are typically repeat players before an agency that regulates them highly,” Pai responded.

The FCC’s net neutrality rules are being challenged in the D.C. Circuit Court of Appeals, which has yet to issue a ruling after a hearing last year.

The rules prohibit Internet providers from blocking or slowing traffic, or from so-called “paid prioritization,” in which a site could offer payment for speedier access to subscribers. The FCC moved to Title II to establish a stronger legal footing to withstand a court challenge.

Earlier this week, a Senate panel, led by Sen. Ron Johnson (R-Wis.), issued the results of a report concluding that the FCC was “unduly influenced” by the White House in moving to Title II reclassification, considered the most robust regulatory approach.

The report claims that the FCC was moving toward a different approach until President Obama announced in November, 2014, that he supported reclassification.

But Wheeler has said that a number of different approaches were considered as the FCC was drawing up the rules, and he eventually became convinced that reclassification was the best approach.

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