Net Neutrality Threatens Telecom Act Update

Any time Congress attempts to pass comprehensive legislation, finding common ground and reaching the finish line can be difficult. When current events are thrown into the mix, the process often becomes even more problematic.

That’s the situation facing a potential rewrite of the 1996 Telecommunications Act and the Federal Communications Commission’s forthcoming rules for regulating internet service providers. Treating ISPs as utility companies under Title II of the Telecommunications Act could derail legislative efforts to overhaul the law, according to some experts.

“If the FCC reclassifies broadband as a telecommunications service, I think, frankly, you can put on the shelf any idea of having comprehensive telecom reform in the Congress to come,” former Rep. Rick Boucher (D-Va.) said Dec. 4 at an industry conference in Washington.

Boucher, who played a significant role almost 20 years ago when lawmakers revised the original Telecommunications Act of 1934, said the divisive issue of net neutrality would bring progress to a halt.

Republicans have said they’ll review the 1996 telecom law when they take control of Congress next month. Sen. John Thune (R-S.D.), who is expected to become chairman of the Commerce Committee, which is responsible for communication legislation, has said he wants to make changes to a law that essentially gives no direction on how to regulate the internet.

On the House side, Energy and Commerce Committee Chairman Fred Upton (R-Mich.), has already begun reviewing how to update the law, taking white papers and holding hearings, with more planned for January.

With a GOP-led Congress, chances of passing comprehensive telecom reform have improved. But if the FCC implements Title II, those chances likely disappear behind a barrage of hearings and litigation.

FCC Chairman Tom Wheeler yesterday said he wants to move quickly on net neutrality rules next year. He declined to offer a specific timetable.

Despite advocates pushing for telecom reform, some doubt there’s chance for congressional legislation to find its way into law, regardless of what happens with net neutrality.

“It’s still a long shot,” said James Gattuso, a senior research fellow in regulatory policy for the Heritage Foundation “Getting any telecommunications act through Congress has been difficult historically. I don’t see any less division on these issues in Congress.”

An impasse of that kind would be welcome to some.

“The world of the 1996 act is deregulating on its own,” said Peter Van Doren, a senior fellow at the Cato Institute. “If I’m a telecom company executive, I would sit back and let the world change slowly.”

However, it may be possible for Wheeler to implement net neutrality on a short-term basis, according to Rob Atkinson, president of the Information Technology and Innovation Foundation.

He said Wheeler could bring ISP company chiefs together and have them agree on a set of legal principles similar to the ones laid out by former FCC chairman Michael Powell.

In 2004, Powell outlined the internet freedoms he said consumers should have a right to: choice of legal content; applications of their choosing; choice of devices to use on home internet connections; and access to meaningful information regarding service plans.

Whatever Wheeler does, though, “is a stopgap measure that has at most four years,” said Atkinson, who served as an appointee under the Clinton, Bush and Obama administrations.

But internet content companies such as Netflix and say Wheeler has the legal power and ability to implement net neutrality rules now that will hold up in court. And they want to see the FCC act sooner rather than later.

“The internet industry continues to call on the FCC to move as quickly as possible to adopt legally sustainable and enforceable rules that prevent paid prioritization and protect an open internet for users,” said Noah Theran, a spokesman for the Washington-based Internet Association, a trade group for internet content providers, in an email. “Congress certainly has the right to legislate, but the FCC has more than enough authority to create the strong, enforceable net neutrality rules Internet users require.”

Morning Consult