Republicans in Congress last week introduced draft legislation that is intended to protect Americans’ unfettered access to Internet content and services, but the proposal drew criticism that it would undermine the Federal Communications Commission’s authority.
The draft legislation would prohibit broadband Internet providers from blocking “lawful content, applications, or services” or throttling “lawful traffic by selectively slowing, speeding, degrading, or enhancing Internet traffic based on source, destination, or content,” Both prohibitions, however, carve out an exception for “reasonable network management.”
The proposal would define broadband as an “information service” and preclude the FCC from regulating the service under Section 706 of the Telecommunications Act of 1996.
In a Net neutrality proceeding that has garnered an unprecedented amount of interest from consumers, the FCC has been considering whether to regulate the Internet under Section 706 or Title II of the Communications Act of 1934.
The FCC could do neither under the draft legislation because only telecommunications services are subject to Title II. Republicans and a number of Internet providers have opposed Title II regulation, saying it is burdensome and was intended to govern utilities.
“By clearly outlining the appropriate rules of the road, and leaving 20th century utility regulation behind, we can be sure that innovators continue full throttle in bringing remarkable new technologies to all Americans,” said Fred Upton, the Michigan Republican who chairs the Energy and Commerce Committee, in a statement.
Lawmakers will consider the proposal on Wednesday during hearings before the House Communications and Technology Subcommittee and Senate Committee on Commerce, Science, and Transportation.
FCC Chairman Tom Wheeler and his colleagues are expected to vote on Net neutrality regulations in February, but the passage of legislation in the Republican-controlled Congress would essentially render such a decision moot.
“By turning the FCC away from a heavy-handed and messy approach to regulating the Internet, this draft protects both consumers who rely on Internet services and innovators who create jobs,” said John Thune, the South Dakota Republican who chairs the Senate Committee on Commerce, Science, and Transportation Chairman, in a statement. “I look forward to continuing discussions about an alternative to controversial FCC action with my ranking member, Sen. Bill Nelson, and other colleagues on both sides of the aisle at our hearing on Wednesday.”
Democrats and other critics said the draft legislation didn’t include sufficient protections and thwarted FDA’s ability to regulate the Internet.
“We stand ready and willing to work with our Republican colleagues, but unfortunately, the bill as currently drafted would dramatically undermine the FCC’s vital role in protecting consumers and small businesses online by limiting its enforcement and rulemaking authorities in this critically important area,” Democratic Senators Patrick Leahy (Vermont), Ron Wyden (Oregon), Al Franken (Minnesota), and Cory Booker (New Jersey) said last week in a joint statement.
The draft legislation also would ban so-called paid prioritization. Opponents of the practice fear content providers such as Amazon and Netflix will pay Internet providers a premium for fast and uninterrupted access to consumers, possibly leaving other websites and content at a disadvantage.
Public Knowledge, a public interest group, said the proposed paid prioritization ban isn’t adequate because the draft legislation includes a loophole that would allow Internet providers to give their own Internet service priority over competing services.
“As this draft reads, Comcast or AT&T or any other provider can offer its over-the-top online streaming service as a ‘specialized service’ and give itself prioritized service. Companies could essentially sell prioritized service to specific applications or content simply by calling these fast lanes ‘specialized services,’” Public Knowledge said in a statement.