Republican net neutrality proposal falls short, critics say

The Republican draft legislation would kill the FCC's ability to act on schemes that prioritize some traffic over others, witnesses told a congressional committee.

The proposal "would strip the county's expert communications agency of authority to protect consumers on the communications platform of the 21st century," said Jessica Gonzalez, executive vice president of the National Hispanic Media Coalition.

"It effectively freezes the FCC in time, only allowing it to confront a handful of harmful practices that we have contemplated based on market conditions and technology that exists today," she said.

The bill would also exempt certain "specialized" services, such as smart grid services and others that are separate from the public Internet, from the prohibitions on paid traffic prioritization. That would leave a "giant loophole" that could allow broadband providers to prioritize their own Web content, Gonzalez said, a hearing before the House of Representatives Energy and Commerce Committee's communications subcommittee.

The draft bill also allows broadband providers to engage in "reasonable" network management but doesn't define that term, critics said.

The proposal's prohibition on broadband providers selectively blocking or throttling Web content, and its general ban on paid prioritization deals, are encouraging, said Chad Dickerson, CEO of online marketplace Etsy. Dickerson also applauded the proposal for applying the same rules to mobile broadband as it does to wired broadband.

But Etsy is concerned that the proposal, with an exemption for specialized services, "does not ban all types of discrimination online, leaving loopholes that could be easily exploited," he said.

Instead of the draft bill, Congress should let the FCC move ahead with its plan to pass net neutrality rules, Gonzalez said.

The FCC, likely to reclassify broadband as a regulated public utility at its Feb. 26 meeting, would provide broadband providers and customers with certainty moving forward, she said.

Several Democrats on the subcommittee agreed. While Congress has authority to act in the area, it doesn't move at Internet speed, said Representative John Yarmuth, a Kentucky Democrat. "Congress, at its optimum efficiency, moves at about 10 miles per hour," he said. "The world's moving at 100."

Still, many Republicans, along with executives at broadband trade groups CTIA and the National Cable and Telecommunications Association, voiced opposition to the FCC reclassifying broadband as a regulated common carrier under Title II of the Telecommunications Act.

If the FCC reclassifies broadband, the issue will be tied up in courts for years, said Michael Powell, NCTA's president and CEO and a former FCC chairman. Powell repeated the hotly debated contention that reclassification would discourage broadband providers' investments in their networks, even though Sprint and Verizon Communications officials have said recently that their companies will continue to invest.

A net neutrality law passed by Congress would provide more legal certainty than an FCC regulation that will likely be challenged, Republicans argued.

Two past attempts by the FCC to pass net neutrality rules were thrown out by courts, Powell noted. The net neutrality struggle has been "long and torturous precisely because Congress has not established a clear foundation for the FCC to act," he said. "The commission has turned itself in knots for over 10 years trying to adopt a simple set of Internet regulations."

The draft proposal is an attempt at compromise and based partly on 2010 net neutrality rules adopted by a Democratic majority FCC, said subcommittee Chairman Greg Walden, an Oregon Republican. The subcommittee is open to changing the proposal to address some of the criticisms raised, he said.

Congress has a responsibility to set U.S. Internet policy, and it should move the debate away from Title II, largely written more than 80 years ago to address a telephone monopoly, Walden said. "We have a very important choice to make, between letting three very smart and capable, but unelected, people at the FCC -- the majority of the commission -- use a statute written for another era to cobble together a regulatory scheme ... providing no protections but much uncertainty," he said.

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.