Members on both sides of aisle in the House Communications Subcommittee appear to be in agreement that the FCC should not regulate broadband rates and that it should make some accommodation in its Open Internet rules for small ISPs, but just how they are defined and how that should be achieved divided the committee along political lines.
That came in a legislative hearing Tuesday (Jan. 12) ostensibly covering four communications bills but, in reality, focused entirely on two broadband-related bills: HR 2666, the No Rate Regulation of Broadband Internet Act, and the Small Business Broadband Deployment Act.
The first would prevent the FCC from regulating broadband rates, the second would make permanent the small ISP exemption from enhanced network management disclosure requirements of new Open Internet rules.
Republicans argued that given that both the President and FCC chairman Tom Wheeler said new Title II based Open Internet rules should not regulate access rates, codifying that should be a bipartisan no-brainer of sorts. They also said that the FCC should have made the small business exemption permanent last month, and expanded it from the FCC definition of "small" ISP—100,000 subs or fewer—to the SBA definition of 500,000, particularly given that only one comment had been filed opposing that, and that one was at the 11th hour.
Democrats agreed with no traditional rate regs, but argued the bill's language was too broad and could sweep away consumer protections from monopoly rates, anticompetitive interconnection charges and even rural broadband subsidies under the Universal Service Fund. They also argued that while the FCC may ultimately decide to make the small business exemption permanent, doing so by congressional fiat would be premature.
Both sides had backers on the witness stand. Strongly supporting the rate reg-blocking bill was Wiley Rein partner and former FCC commissioner Rob McDowell, who argued the bill should even be strengthened to explicitly block potential rate regulation—by enforcement action—of interconnection agreements. Backing the permanent exemption was Elizabeth Bowles on behalf of the Wireless Internet Service Providers Association (WISPA), who said the FCC should have made the exemption permanent, that compliance costs were a hardship, and that many smaller operators could not afford the lawyers it took to figure out what the new requirements were much less having to defend the company’s action from lawsuits if they guessed wrong or frivolous lawsuits.
Taking the other side on both bills was Harold Feld of Public Knowledge. He said that it would be premature for Congress to make the exemption permanent before the FCC had a better handle on what the actual compliance costs would be, and that where exemptions were made permanent, bad actors would follow to take advantage of not having to provide enhanced disclosure of their practices.
As to the rate regulation bill, he said the language was too broad and could prevent the FCC from restraining monopoly pricing and potentially even prevent it from providing subsidies to rural broadband buildouts via the Universal Service Fund since that was a form a price regulation.
McDowell said that perhaps the bill could be amended to provide a USF carve-out.