Markey Leads Push for Title II Reclassification

"We remain concerned that the Commission’s recent notice of proposed rulemaking suggests approaches that could undermine the openness of the Internet,” said Markey’s letter to the FCC Tuesday (http://1.usa.gov/1zFY6X1). It was also signed by Sens. Richard Blumenthal, D-Conn.; Cory Booker, D-N.J.; Barbara Boxer, D-Calif.; Ben Cardin, D-Md.; Al Franken, D-Minn.; Kristen Gillibrand, D-N.Y.; Jeff Merkley, D-Ore.; Bernie Sanders, I-Vt.; Chuck Schumer, D-N.Y.; Elizabeth Warren, D-Mass.; Sheldon Whitehouse, D-R.I.; and Ron Wyden, D-Ore. “Because the item tentatively concludes that” ISPs “would be allowed to offer faster delivery times for websites, applications or services that pay for it, the Commission’s proposal could fundamentally alter the Internet as we know it,” said the senators. The right authority lies in Title II, they said. “By reclassifying the transmission component of broadband Internet access as a telecommunications service, with appropriate forbearance, the FCC could prevent online discrimination."

"No new laws have to be passed,” Markey told a small group at the Capitol Tuesday for a news conference. Some Democrats have called for legislation to ban prioritization deals, also referred to as Internet fast lanes. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Rep. Doris Matsui, D-Calif., wrote such legislation earlier this year. The FCC has defended its rulemaking, which lays out the possibility of crafting net neutrality rules relying on Communications Act Section 706 rather than Title II. Chairman Tom Wheeler has said the agency has not ruled out reclassification and the NPRM asks several questions, including about banning prioritization deals.

The heads of Free Press and Public Knowledge were alongside Markey, plus Franken, Sanders and Schumer. Strong net neutrality rules “cannot be established under the current framework,” Schumer declared, arguing reclassification could proceed “in a balanced and judicious” manner.

"Call it like it is,” Franken remarked, saying it’s plain broadband should be considered a Title II telecom service. “We're here because we want the Internet to stay the way it’s been.” Sanders referred to the FCC “proposal to end net neutrality on the Internet” and Markey said that “would end the Internet as we know it today,” counter to Wheeler’s own pledges that he wants to preserve the open Internet.

Markey scoffed at industry arguments that Title II would create regulatory burdens and uncertainty. “We all know that’s just not true,” Markey said, also rejecting the idea that broadband should be considered a Title I information service. “The facts just do not support this conclusion.” He fears “an exclusive set of gate communities,” he said, and cautioned against the FCC’s past net neutrality rules that failed in court due to what he judges to be weak legal authority and not Title II: “Our message to the FCC is crystal clear -- don’t make the same mistake twice.”

Free Press and Public Knowledge have long backed reclassification and supported Markey’s stance. “There’s never been more public awareness and enthusiasm about an issue,” said Free Press President Craig Aaron. “Some say this path is far too politically difficult, but I don’t think so.” Public Knowledge President Gene Kimmelman called the issue “very simple” and said the concerns about an open Internet are “now constitutional rights,” deeper than before. Franken had framed the issue as one of free expression. Etsy Policy Director Althea Erickson said it’s “very clear” that Etsy, its customers and startups will suffer under the FCC net neutrality proposal: “We hope that Chairman Wheeler does the right thing.”