Senate Democrats Have Issues With Net Neutrality Draft

Limits on FCC authority are big sticking point
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If Senate Commerce Committee ranking member Bill Nelson (D-Fla.) is any indication, Senate Democrats are no more ready to add their names to a network neutrality bill draft than House members appear to be.

In a hearing on that draft, which followed an earlier House Energy & Commerce Committee Communications Subcommittee hearing on the same bill, Nelson talked about not putting a "straightjacket" on the FCC or stripping it of the authority  to "extend universal service funding to broadband or ensure the privacy of sensitive consumer information."

The bill would create a new section in the Telecommunications Act giving express authority to the FCC to prevent blocking or throttling or paid prioritization. But in turn it would prevent the FCC from reclassifying broadband as a Title II service, as just about everybody expects the chairman to propose doing when he circulates new open Internet rules Feb. 5. It would also "clarify" that Sec. 706 was not a grant of authority. That is the section the FCC has used to justify various moves to advance broadband deployment, including migrating the Universal Service Fund to broadband or proposing, as it has just recently, to up the definition of high-speed broadband to 25 Mbps downstream.

Sen. Ed Markey (D-Mass.), put an exclamation point on the Democratic issues with the draft and its preemption of Title II. Markey suggested that taking away that Title II authority and Sec. 706 authority would leave the FCC unable to expand the Universal Service Fund to broadband, or protect privacy, or accessibility to the disabled.

He said that network neutrality was just a fancy word for nondiscrimination, the same kind of nondiscrimination that, in the context of the Civil Rights Act, meant people could sit at lunch counters of their choice. It is about access, he argued. It is about anyone being able to get in, and compete, he said.

That included access to capital. While former FCC commissioner Robert McDowell, also a witness on the panel, talked about the impact of Title II on investment, Markey said the key investments, those by the future Googles and YouTubes, wanted Title II, because that signaled to investors that there would be an Internet open to access and innovation.

He pointed out that 62% of venture capital in 2013 went to tech and net companies, the Etsys of the world, that wanted Title II. Top Etsy exec Chad Dickerson had been a witness at the House hearing, arguing for strong net neutrality regs from the FCC.

The witness getting the most attention in the first part of the hearing was Public Knowledge's Gene Kimmelman, who also put in a plug for Title II, and on using a few more of its provisions than even some Title II fans have proposed. He said Congress should stick to what it does best, which is establish principles and goals, and delegate the details to the FCC, the expert agency.

Former FCC commissioner Rob McDowell, no fan of Title II, said one of the issues was that folks like Kimmelman were asking for more of those common carrier regs to be in the FCC's toolkit, regs he said were from a bygone era when a phone had to be held with two hands.

McDowell said that FCC reclassification under Title II would drag the whole tech sector under the FCC's purview. And an effort to forbear all but a few of those regs would likely be thrown out by the court because it would look arbitrary and capricious, as though the FCC were trying to pick political friends.

McDowell also pointed out that under Title II, the FTC would lose some oversight authority due to the common carrier exemption.

Sen. Dean Heller (R-Nev.) said it looked to him like about 70% of the draft was what the other side wanted, and did not seem to understand the Democrat opposition. But he did say he wanted to work with the minority and come up with some kind of bill.

“It’s disappointing that Democrats seem unwilling even to discuss a legislative solution that could finally resolve the decade-long net neutrality debate,” said Berin Szoka, president of TechFreedom, in rsponse to the general lack of enthusiasm from Democrats on both sides of the aisle.

The hearing had taken a break for votes at press time, with Sen. Cory Booker (D-N.J.) up next in the rotation when it resumed.

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