House Republican Seeks to Block FCC's Net Neutrality Efforts

By Kenneth Corbin | May 11, 2010 | Print this Page
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A House Republican is attempting to block efforts by the Federal Communications Commission to reclassify broadband as a regulated telecommunications service as it looks to advance its network neutrality agenda.

Cliff Stearns (Fla.), the ranking Republican on the Energy and Commerce Committee's Internet subcommittee, introduced a bill on Tuesday that would require the FCC to provide Congress with evidence of a market failure in the Internet service sector before enacting any form of regulations governing how ISPs manage their networks.

"I see no reason for Internet regulation," Stearns said in a statement. "Yet, if there is ever a cause for regulation, it is a decision to be made by Congress -- not the FCC."

Stearns' bill comes in response to an announcement last week from FCC Chairman Julius Genachowski that he is planning a rulemaking proceeding to reclassify broadband as a so-called Title II service under communications law. That arcane distinction would clarify the FCC's authority over the broadband sector in the wake of a ruling from a federal appeals court in April, which overturned a 2008 order rebuking Comcast for secretly throttling peer-to-peer traffic on its data network.

The ruling called into question the FCC's ability to advance significant elements of the national broadband plan it recently submitted to Congress, as well as the net neutrality proceeding the commission initiated in October.

Stearns' bill reflects the longstanding criticism voiced by net neutrality opponents, who argue that in the few instances when ISPs have secretly blocked or throttled lawful content, they have backed down in the face of a consumer outcry. Comcast, for instance, shifted to a content-neutral method of managing data traffic before the FCC issued its order scolding the cable giant.

Stearns called Genachowski's push for Title II reclassification a "partisan maneuver to regulate the Internet," arguing that the online economy has flourished in the absence of government intervention.

His bill would require the FCC to conduct a thorough analysis of the broadband market and submit a report to Congress detailing specific instances of market failure before it enacted any rules concerning how ISPs manage their networks or price their services.

Critics have charged that Title II regulations that date back to the monopoly phone era would needlessly encumber ISPs with burdensome compliance requirements and inevitably curtail investment and innovation in the Internet sector.

Genachowski has insisted that his approach is an alternative to an all-or-nothing regulatory proposition, assuring that his reclassification order would carry significant forbearance obligations to exempt ISPs from some of the most burdensome requirements imposed on wireline phone providers.

"Heavy-handed prescriptive regulation can chill investment and innovation, and a do-nothing approach can leave consumers unprotected and competition unpromoted, which itself would ultimately lead to reduced investment and innovation," he said in announcing his "third way" to broadband regulation.

The two other Democratic commissioners rushed to praise Genachowski's Title II proposal. The two Republicans on the five-person commission issued a joint statement blasting the chairman's idea as unnecessary and disappointing, predicting that reclassification without a congressional mandate would ultimately be overturned in an appellate court, just as the Comcast order was.

In the meantime, the trade associations representing the cable and telecommunications industries quickly heralded Stearns' bill as an effort to curb what they view as an overzealous FCC.

"This legislation recognizes that unprecedented government regulation of the Internet must be a measure of last resort and that our nation's broadband future depends on continuing policies that promote private investment," Kyle McSlarrow, president and CEO of the National Cable and Telecommunications Association, said in a statement.

Walter McCormick, the head of U.S. Telecom, issued a similar statement praising Stearns for seeking to rein in the commission with a legislative check.

An FCC spokeswoman declined to comment on Stearns' bill.

Kenneth Corbin is an associate editor at InternetNews.com, the news service of Internet.com, the network for technology professionals.