Net neutrality hearing shows Congress is still divided on a solution

US lawmakers on both sides of the aisle believe in a free and open internet, but it's clear after today's hearing in the House on net neutrality that they're miles apart on how to get there.

Democrats last year unsuccessfully fought to reinstate Obama-era net neutrality rules that were repealed by a Republican-led FCC in 2107. Meanwhile, Republicans have been pushing legislation they say will protect net neutrality, but that critics say will strip the Federal Communications Commission of authority and provide endless loopholes for broadband providers. Now, some Democrats say they may be open to legislation too, but agreeing on the details could be a challenge.

Still, Republicans, who are rumored to be readying at least three bills on net neutrality, say the time is now to hash out a compromise. Thursday's hearing was held by the House Energy and Commerce Committee. 

"We could have messaging fights or we could pass laws," said Rep. John Shimkus, a Republican from Illinois. He argued that if lawmakers really want to pass a law protecting net neutrality, they'll have to find some sort of middle ground.

The debate in Congress comes at a time when the net neutrality issue is back in the courts. Proponents for the 2015 rules sued the government, charging that the FCC, led by Chairman Ajit Pai, overstepped its bounds when it voted in December 2017 to roll back the Obama-era net neutrality protections. Those rules banned broadband providers from slowing or blocking access to the internet or charging companies higher fees for faster access. Oral arguments in the case were heard Friday. A decision in the case is expected this summer.

But even then the issue isn't likely to be settled, as former FCC Chairman Michael Powell testified during the hearing Thursday. He said the case will probably drag on another year or more as the decision will likely be appealed. Or if there's a mixed decision, the FCC will open another regulatory proceeding to take a crack at the repeal again.

"There comes a point when it becomes clear that the problem the FCC is struggling with is a lack of clear direction from the people's elected representatives," he said.

Not so simple

It's true that nearly everyone agrees on the basic concept of net neutrality. No blocking. No throttling. No jumping the line because you pay the broadband provider more for access.

But the crux of the debate over net neutrality is not about the rules per se. It's about the authority the FCC should have in policing and enforcing these rules.

As part of its 2015 regulation, the Democrat-led FCC reclassified broadband networks to make them subject to the same strict regulations that govern telephone networks. They reclassified broadband as a so-called Title II telecommunications service, instead of the more lightly regulated Title I information service. They did so because the federal appeals court had twice thrown out the FCC's previous attempts to write rules or enforce net neutrality concepts. The reason for these rejections in the courts was simple: The agency lacked authority under the provision of the law they said gave them that authority.

So the agency changed the classification to give themselves that authority. And the federal appeals court agreed. When the 2015 rules were challenged, the court upheld them.

But broadband companies and many Republicans said the agency went too far. They argued that reclassifying broadband as a Title II service gives the FCC too much power to regulate broadband service in other ways.

"Title II sounds innocuous," said Rep. Greg Walden, a Republican from Oregon. "But it gives big government unlimited authority to micromanage every single aspect of a provider's business, that includes setting rates. There is nothing neutral about this kind of authority."

Other Republicans, like Rep. Billy Long of Missouri, argued that Title II is nearly 100 years old and outdated.

But Rep. Anna Eshoo, a Democrat from California and strong net neutrality supporter, shot back.

"You know what the oldest law is? The constitution," she said. "It has a lot of dust on that. Maybe we should throw that out, too."

Legislation is the answer

Republicans and the broadband industry say the only way to settle the issue is for Congress to write a law codifying the principles of net neutrality, such as no blocking, no throttling and no discriminatory conduct, like paid prioritization. And there's talk of at least three different bills being drafted by Republicans to do just that.

Some Democrats on the committee -- such as Reps. Darren Soto of Florida, Tom O'Halleran of Arizona and George Kenneth Butterfield of North Carolina -- seem interested. But net neutrality proponents say that any legislation must preserve the FCC's authority and must go beyond the three so-called "bright line" rules to ensure any bad conduct from broadband providers isn't allowed.

Former FCC Chairman Tom Wheeler, whose FCC drafted the 2015 order, was asked to testify at the hearing. He said the policies set forth in 2015 are "backbone concepts for the oversight of networks."

"Any further policy considerations should use the 2015 concepts as the starting point to securing the public's critical interest in a free and open internet," he said.

But net neutrality advocates argue that Republicans' previous attempts at drafting legislation stripped the FCC of its authority and left loopholes for broadband providers to get around the rules.

"I don't know what is in the bills that they're planning to introduce," Mozilla COO Denelle Dixon, who testified at the hearing, said in an interview. "But we want a requirement that includes strong enforcement from the FCC and flexibility to address other issues, like interconnection, mobile and zero-rating."

Now that Democrats are in charge of the House there are likely to be more hearings on net neutrality. But legislation that both sides can agree on and that can get a signature from President Donald Trump still seems like a long way off.

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