House, Senate Appropriations Bills Source of Net Neutrality Concerns

Josh Long

**Editor’s Note: Click here for Channel Partners’ ongoing coverage of Net neutrality.**

Last month, the Senate Appropriations Committee voted to pass a spending bill that would bar the Federal Communications Commission from regulating rates charged by broadband Internet providers.

An appropriations bill in the House includes similar language, but it also goes further by prohibiting the FCC from using funds to enforce its Open Internet Order until lawsuits challenging the regulations are exhausted.

The language in the appropriations bills has concerned some advocates of an open Internet.

In a July 22 letter to the leaders of the Senate Appropriations Committee, the advocacy group Public Knowledge objected to two so-called riders that were contained in the spending bill, including the rate regulation provision. The $20.6 billion legislative measure would fund a variety of agencies, including the FCC, U.S. Treasury Department and Securities and Exchange Commission.

Section 634 of the bill states, “None of the funds made available by this Act may be used to regulate, directly or indirectly, the prices or related terms … charged or imposed by providers of broadband Internet access service … for such service, regardless of whether such regulation takes the form of requirements for future conduct or enforcement regarding past conduct.”

Public Knowledge expressed concern that the Senate rider was written so broadly that it could have far-reaching implications beyond prohibiting regulation of Internet rates.

“It is not harmful rate regulation for the Commission to prevent gatekeeper ISPs from levying new tolls on every website in the world; to stop consumers from losing access to popular websites due to interconnection disputes between network providers; to limit new innovative services through anticompetitive data caps; or to protect consumers from downright fraudulent or below-the-line fees,” Christopher Lewis, Public Knowledge’s vice president for government affairs, wrote in the letter to Sens. Thad Cochran (R-Mississippi) and Barbara Mikulski (D-Maryland). “Such protections can help maintain the open Internet consumers have come to expect.”

However, the spending bill in the Senate Appropriations Committee would prevent the FCC from even examining whether certain behavior is anticompetitive or covered under the Open Internet Order, Lewis told Channel Partners. He cited the example of an Internet service provider imposing data caps on certain over-the-top (OTT) video services like Amazon or Hulu, while excluding its own OTT service from the data cap.

“When you create appropriations bills that deal with policy issues with a blunt instrument like …

… funding, then you don’t deal with them in a way that is sensitive to the technicality of the policy or the intricacies of the technology that we are dealing with,” Lewis said in a phone interview.

The appropriations riders also have alarmed Sen. Bill Nelson of Florida, a Democrat who has been working on Net neutrality reform with Sen. John Thune, a Republican from South Dakota.

Bryan Gulley, a spokesman for the Democratic Office’s Senate Commerce Committee, said Nelson is concerned that the Net neutrality “effort could be undermined by lawmakers trying to fiddle with the FCC in a recent funding bill.”

Alan Roth, senior executive vice president of the United States Telecom Association (USTelecom), questioned the reason for opposition to the appropriations bills’ provisions that forbid FCC regulation of Internet rates since he noted FCC Chairman Tom Wheeler wasn’t opposed to such a prohibition.

Sen. John Boozman, a Republican from Arkansas, asked Wheeler during a hearing in May if he was opposed to Congress prohibiting the FCC from regulating broadband Internet rates, including those related to interconnection.

In response, Wheeler noted the FCC has asserted its forbearance authority to refrain from subjecting broadband to various regulations under Title II of the Communications Act.

“There has been a concern raised, ok, this commission will stay out of that, but what about the next Commission?” Wheeler continued in his response to Boozman. “If Congress wants to come along and say that’s off the table for the next Commission too, I have no difficulty with that.”

Whether the appropriations bills will be voted on by the entire House and Senate remains to be seen. The FCC’s Internet regulations face a more imminent threat in federal court where the broadband industry has lambasted the agency’s decision to regulate broadband as a telecommunications service under Title II.

“Everybody is in basic agreement about the fundamentals of Net neutrality,” said Roth, who referenced for example the FCC’s decision to prohibit blocking of lawful Web content. “The fundamental core elements or key parts of the Net neutrality concept itself are things that pretty much everybody is on agreement on and that really hasn’t been the center of dispute.”

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