Broadband advocates urge Republicans to overturn FCC on net neutrality

With the FCC scheduled to vote on new net neutrality rules in less than 24 hours, broadband advocates at a House of Representatives hearing Wednesday told Republican lawmakers they should move forward with plans to pass their own rules.

FCC rules without congressional action on net neutrality could open up the regulations to a court challenge or repeal by a future FCC, said Rick Boucher, a former Democratic congressman who is now honorary chairman of the Internet Innovation Alliance, a broadband advocacy group. Long-lasting net neutrality rules are needed, he told members of the House Energy and Commerce Committee.

Congressional action on net neutrality could still take months, and although a bill would likely pass the Republican-controlled House, it could get hung up in the Senate, where Democrats have a large enough minority to filibuster legislation. President Barack Obama, who supports FCC Chairman Tom Wheeler's proposal to reclassify broadband as a public utility, would also likely veto a Republican bill that would include limited net neutrality rules while taking away some FCC authority.

While there are some problems with a Republican net neutrality proposal, Wheeler's proposal is likely to be challenged in court, Boucher said. In addition, without congressional action, an FCC under Republican control, appointed by a Republican president, could easily move to overturn Wheeler's reclassification of broadband, he said.

Wheeler's proposal "truly rests on a tenuous foundation," Boucher told the committee. "Without statutory protection, the net neutrality guarantees can be swept away in the next presidential election."

Wheeler has proposed reclassifying broadband from a lightly regulated information service to a more heavily regulated telecommunications service as a way to enforce net neutrality rules prohibiting broadband carriers from selectively blocking or degrading Web traffic. Wheeler's plan would treat broadband in some ways like a regulated public utility, but would have the FCC decline to enforce many traditional telecom rules, like price regulation.

Boucher urged fellow Democrats to work with Republicans who have released their own net neutrality proposal. Although many Republicans have opposed any net neutrality rules in recent years, their side has "made a major move toward the historic Democratic position" on net neutrality, he said.

The Republican net neutrality proposal, released last month, would prohibit the FCC from reclassifying broadband as a regulated public utility, as Wheeler has proposed, and prohibit the agency from creating any new net neutrality rules following passage of the bill.

The Republican proposal's prohibition against the FCC crafting any further net neutrality rules is a stumbling block, said Representative Anna Eshoo, a California Democrat. The Republican proposal wouldn't allow the FCC to clarify general language prohibiting broadband providers from blocking or slowing Web traffic, she added.

"There's no follow-up by the agency that has jurisdiction," Eshoo said.

Wheeler declined Republican invitations to testify at Wednesday's Energy and Commerce hearing, as well as one planned by the House Oversight and Government Reform Committee hearing later in the day. With Wheeler not coming, the Oversight Committee postponed its hearing to explore White House influence on Wheeler's net neutrality proposal.

At the Energy and Commerce hearing, three of four witnesses spoke against the FCC proposal to reclassify broadband as a telecom service under Title II of the Telecommunications Act.

Reclassifying broadband at the FCC would bring uncertainty for both broadband providers and Web-based businesses, said Robert Atkinson, president of the Information Technology and Innovation Foundation, a tech-focused think tank. A future FCC could go "in either direction," repealing the actions of the Wheeler FCC to reclassify broadband, or restoring many of the Title II telecom regulations Wheeler's FCC decided not to enforce, he said.

Wheeler giving assurances that the FCC will forbear from many telecom regulations shows that "Title II is a kludge of a solution," he said. "It's not a solution when you have to take whole components of it and move them off the table."

But lawmakers should wait to see how the FCC action plays out, countered Gene Kimmelman, president and CEO of digital rights group Public Knowledge. The FCC's net neutrality rules advance the "fundamental principles that are necessary to promote freedom of expression," he said. Wheeler's plan gives the FCC "clarity in its policing tools that are necessary to guide an open Internet and prevent unreasonable discrimination."

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.