Leahy Won’t Endorse FCC Net Neutrality Rules that Allow Paid Prioritization

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., upped his pressure Tuesday on the FCC to ban paid prioritization deals when creating new net neutrality rules. Leahy held a field hearing in Burlington, Vermont, released an op-ed calling for a “a bill of rights for the online world” and quizzed an array of witnesses who all voiced thanks and support for Leahy’s recently introduced legislation, which would ban such prioritization deals.

In June, Leahy introduced the Online Competition and Consumer Choice Act, S-2476, with co-sponsors Sens. Al Franken, D-Minn., Martin Heinrich, D-N.M., Bernie Sanders, I-Vt., and Sheldon Whitehouse, D-R.I. Rep. Doris Matsui, D-Calif., introduced companion House legislation (HR-4880). Net neutrality legislation is widely seen as unlikely to move due to the partisan divide but can send a signal to the FCC (CD Feb 3 p5), which has issued an NPRM on how best to craft new net neutrality rules.

The field hearing “put flesh on the bones of a lot of the stuff we've been talking about,” former FCC Commissioner Michael Copps, one of the four witnesses, told us after the hearing. Copps, now a Common Cause Media and Democracy Reform Initiative special adviser, took to the witness table to strongly advocate for reclassifying broadband as a Title II telecom service, which congressional Republicans, some Democrats and much of industry oppose. Copps argued that Title II provides a stronger legal foundation for net neutrality rules, during the hearing calling the decision to classify broadband as a Title I service “one of the strangest decisions ever made by a federal agency.” Expect “enormous pushback” if reclassification happens, Copps told us. “It’s going to go to court. ... There is no easy way.”

Rep. Peter Welch, D-Vt., at the hearing said Title II reclassification’s many opponents fear the possibility of it “stifling innovation” in applying rules meant for the monopoly phone era. “Are there different ways that can be achieved?” Welch asked. FCC Chairman Tom Wheeler has outlined a belief that he can craft net neutrality rules under Communications Act Section 706 authority.

"Nobody is saying that your computer is the same as an old crank telephone,” Copps told Welch. “Of course this is different.” Copps emphasized there’s no net neutrality protection at all now, but said he believes rules crafted under Title II are the only ones that can withstand court scrutiny. Copps suggested Title II forbearance or crafting new Title II regulations “precisely aimed” at broadband service to avoid the problems Welch raised. “Legislation always helps,” Copps said. “But the action is between now and the end of the year at the FCC.” Copps dismissed the idea of any “clever, other new way to get this done” aside from the FCC reclassifying. The agency should do that and then address interconnection and peering agreements, Copps said: “I don’t think consumers care too much where that discrimination occurs.” Leahy asked whether the FCC can ban what he referred to as Internet fast and slow lanes, created in prioritization deals, and Copps relied yes, but likely only with Title II’s stronger foundation.

The Leahy-Matsui legislation gave people hope, Welch said, expressing desire to work with both, though he’s not a co-sponsor. Witnesses also praised Leahy for the bill. Lisa Groeneveld, chief operating officer of South Burlington computer manufacturing firm Logic Supply, said the open Internet is “under threat” and slammed paid prioritization. Vermont State Librarian Martha Reid lambasted the idea of a “tiered Internet” and listed different services libraries now offer, arguing “unimpeded Internet access is critical.” Logic Supply would pay for a fast lane if it had to but thinks the practice is wrong, Groeneveld said. “You're just put in the squeeze,” Welch remarked of that scenario.

Leahy said he has heard from thousands of Vermonters on net neutrality and plans a field hearing “summary and report” for other Judiciary members. “Our little state has spoken very clearly,” Leahy said. He argued against prioritization deals in an op-ed, too, published at The Huffington Post (http://huff.to/TMytTu) as well as the blog of 1776 DC, a hub for tech startups.

"That’s why I have urged the FCC to get outside the Beltway,” Copps told us of the field hearing’s virtues, while acknowledging that Wheeler and commissioners individually have traveled. All members of the agency should do so together before the net neutrality rulemaking is complete, he said. “We used to take the whole Commission on the road.” Copps expects a major campaign for reclassification to continue “around the country” in meetings and town halls, in conjunction with Common Cause and Free Press, part of “a rising crescendo” to that end, he said. “We don’t have a lot of time to mess around with new and novel ways.” (jhendel@warren-news.com)