1/5/2015
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Utility-Like Regulation Would Go Too Far, GOP Lawmakers Say
Federal Communications Commission Chairman Tom Wheeler delivers opening remarks at the start of a Open Internet Roundtable discussion in September. MARK WILSON/GETTY IMAGE
WASHINGTON—Newly fortified Republicans in Congress are considering a number of ways to stymie the Obamaadministration’s planned regulations on broadband Internet providers in 2015, making Capitol Hill a new front in the fight over “net neutrality.”
Concern about the rules is playing into Republican efforts to rein in what they say is regulatory overreach by the Federal Communications Commission.
Dissension over the Internet rules is so rancorous that it could end up impeding progress on technology policy areas where there is potential for agreement, such as cybersecurity and the allocation of wireless spectrum, according to telecom lobbyists and congressional aides.
The FCC spent most of 2014 drafting the new rules for how broadband Internet providers manage their networks, and it plans to vote on a final rule in February. Shortly after the midterm elections, President Barack Obama called on the FCC to impose the strongest possible rules on providers by classifying broadband as a utility, which would make it subject to much greater regulation. The rules are designed to protect net neutrality—the principle that all Internet traffic should be treated equally.
Many conservatives and the broadband industry say utility-like regulation is a step too far, arguing it will stifle innovation in the industry. That view is held by some pivotal players in the new Congress, such as John Thune (R., S.D.), the incoming chairman of the Senate Commerce Committee.
“The regulatory tools at the FCC’s disposal are outdated and its previous efforts to create rules to regulate the Internet were struck down by the courts,” Sen. Thune said in a statement. “It’s hard to imagine that its new attempt will escape legal challenges and avoid the kind of regulatory uncertainty that harms Internet innovation and investment.”
In the House, a Republican staffer for the House Energy and Commerce Committee, which oversees the FCC, said lawmakers won’t know what steps they will take until they see the agency’s final plan. But all options are on the table, he said, including legislation to block reclassification and cutting the agency’s budget. The FCC is already straining to complete the many outstanding items on its docket with its current resources. Lawmakers also could try to implement a seldom-used law, the Congressional Review Act, which allows Congress to void major rules issued by federal agencies.
Another option is legislation to preserve net neutrality without resorting to utility regulation. However, such legislation would be anathema to many Republicans who oppose any regulation of Internet access.
Moreover, any legislation to override or undo the Internet rules would be a heavy lift in Congress. It would have to pass both the House and Senate, then override a likely veto from Mr. Obama, which would require a two-thirds vote in both chambers. Moreover, the most effective challenge to the rule may come not from Congress but from the industry; within the FCC, officials take it as a given that whatever the commission produces will be challenged in court.
“There are many paths that opponents of strong net neutrality rules can follow in the Congress,” said Gene Kimmelman, president of the group Public Knowledge, which supports strong net neutrality rules, in an interview. “However if the White House remains firmly in favor of strong net neutrality rules, all legislation is likely to fail.”
As a result, the most likely venue for taking on the agency will be the hearing room, where GOP-led committees can be expected to grill FCC Chairman Tom Wheeler on the policy while making it clear that they oppose expanded regulation of broadband providers. A date hasn’t yet been set for a net-neutrality hearing.
The net neutrality issue could overshadow a debate over the best way to allocate government spectrum, specifically airwaves that wireless carriers can use to transmit data for smartphones, tablets and other mobile devices. The federal government still holds the most spectrum, which is typically shared between various agencies for a multitude of purposes.
Demand for spectrum has increased significantly in recent years as mobile devices have become the primary Internet connection for millions of consumers. That demand produced a spike in the prices paid for spectrum by the carriers in the FCC auction that ran from November into December. Both parties would like to see more of that spectrum freed up for public use, though there is some debate over the best way to do so. Republicans have traditionally favor selling the airwaves to wireless carriers for their exclusive use, while Democrats would also like to see more spectrum sharing, and more unlicensed spectrum that is free for any device maker to use.
Similarly, the net-neutrality fight could exacerbate the divide over cybersecurity legislation, which has become a higher prioritythanks to the continuing run of high-profile cyberattacks againstSony Corp. and other companies. Both parties agree with industry on the need to update the law, but there is debate on whether industry should face security regulations or be liable in the event of an attack. The fight over net neutrality could make it tougher for individual members to cross party lines to end the long-standing logjam on even modest changes to the cybersecurity laws.
A sense of the Republicans’ eagerness to challenge the administration’s tech agenda came at the end of 2014 when they included in the fiscal 2015 spending bill language prohibiting the Commerce Department from using funds to terminate the U.S. government’s oversight of the Internet Corporation for Assigned Names and Numbers. Icann manages the Internet Domain Name System, which serves as a set of central signposts that help computers locate the correct servers and websites. Conservatives argue that without U.S. involvement, oversight of the Internet could fall into the hands of repressive governments.
Commerce officials said they are still evaluating the language to determine whether it would impede their plan to transfer oversight of Icann to an international group of nonprofits, academics, and engineers.
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