Three Republican members of Congress introduced net neutrality-related bills Thursday, but Congress is still a long way from a bipartisan deal to restore rules banning broadband providers from blocking, throttling, or otherwise discriminating against lawful content.
During a hearing of the House Energy and Commerce Committee, Representatives Cathy McMorris Rodgers (R-Washington), Greg Walden (R-Oregon), and Bob Latta (R-Ohio) all said they had proposed net neutrality bills. None has released the text of their bills yet, but their speeches and previous legislation indicate suggest their proposals will fall far short of the sweeping protections passed by the Obama-era Federal Communications Commission in 2015.
During the hearing, lawmakers from both parties repeatedly agreed on the need for basic net neutrality protections. That represents some progress on the issue. Many GOP lawmakers have questioned the need for such rules for years, and the now-Republican-led FCC voted to repeal its net neutrality rules in late 2017. As the issue has become more mainstream in recent years and polls show both Democratic and Republican voters favor net neutrality protections, Republicans have at least started paying lip service to the idea of net neutrality. But many House Republicans remain opposed to some of the key provisions of the 2015 rules.
The Democratic takeover of the House in last year’s elections has changed the political calculus for net neutrality, pushing both sides toward a bipartisan deal even as a federal court considers a lawsuit challenging the legality of the FCC’s decision to jettison its rules. Thursday’s hearing, though, suggested that there’s still a big gap between the mainstream positions of the two parties.
The Obama-era reclassified broadband as a “Title II” telecommunications service, similar to telephone services. It also imposed a “general conduct” rule that said broadband providers must not “unreasonably interfere with or unreasonably disadvantage” lawful content, and gave the FCC authority to intervene on issues like carriers excluding preferred content from customers’ data use, and “interconnection” deals that internet providers make with each other on a case-by-case basis.
McMorris Rodgers said her bill is based on a state law passed last year in Washington that includes “bright line” rules against blocking, throttling, or creating paid “fast lanes.” She also said her bill would overturn state laws, including the Washington law and the more robust California law passed last year. The Washington state law that McMorris Rodgers based her bill on doesn’t include a general conduct rule and doesn’t cover data caps or interconnection rules. Walden said his bill would be similar to a bill proposed by Senator John Thune (R-South Dakota) and Representative Fred Upton (R-Michigan) in 2015 that included bright line rules but didn’t include a general conduct rule or cover data caps or interconnection. The Thune-Upton bill also banned the FCC from classifying broadband as a Title II service, as did a 2014 bill proposed by Latta.
Even before the FCC voted to overturn the Obama-era rules, major mobile internet providers were throttling video on certain unlimited plans unless customers paid to upgrade to more expensive plans. It’s not clear yet if the new bills would ban this practice. The representatives did not respond to WIRED requests for comment.
Last year, Representative Mike Coffman (R-Colorado) proposed a more comprehensive net neutrality bill that would have created a new Title III classification for broadband. The bill never advanced and Coffman lost his reelection bid last year.
Despite ample evidence to the contrary, Republicans said during the hearing that the Obama FCC’s net neutrality regime led internet providers to decrease their investment in broadband infrastructure. “Do we want to regulate the internet as a 1930s-style utility, one where burdensome regulation and price controls stifle innovation?” McMorris Rodgers asked.
Some broadband providers, like Comcast and Charter, actually increased investment in 2015 and 2016. Others, like AT&T, decreased investment, but told shareholders years before the FCC adopted its rules that they planned to slash infrastructure spending after completing network upgrades.
In a statement Thursday, the industry group USTelecom touted increased spending from the six largest US broadband providers in 2018 as evidence that ditching the net neutrality rules had boosted broadband investment, despite decreased spending by Comcast and Verizon. But even US Telecom admits that these numbers don’t tell the whole story. “The important question for policymakers is not what happens to broadband investment from one period to the next, but what long-term investment would look like under a different regulatory regime,” the organization statement says.
Many Democrats maintain that the “Title II” protections are crucial in order for the FCC to protect consumers. Tom Wheeler, who was the FCC chair when it adopted the net neutrality rules, said if the agency is limited to enforcing “bright line” rules, it wouldn’t be able to police bad behavior not explicitly defined in the rules.
“Consumers don’t have anywhere to turn when they are wronged by these large corporations because the FCC took itself off the beat entirely,” said Representative Frank Pallone (D-New Jersey). “Consumers are left watching the internet slowly change in front of their eyes.”
One particular incident has become a flashpoint in the debate. During the Mendocino Complex Fire in 2018, Verizon throttled the mobile internet speeds for firefighters, according to a brief filed by the county of Santa Clara, California as part of the federal suit against the FCC. The county paid for “unlimited” plans for the firefighters, but the plan limited connection speeds to 1/200th of their usual speeds after exceeding 25GB of data. “This throttling has had a significant impact on our ability to provide emergency services,” the brief says. The county was only able to restore full speeds after contacting Verizon’s billing department and switching to a new plan that cost twice as much.
“In supporting first responders in the Mendocino fire, we didn’t live up to our own promise of service and performance excellence when our process failed some first responders on the line,” Verizon executive Mike Maiorana said in a statement last year. The company created a new plan in response. Maiorana said.
The California incident, which was raised repeatedly by Democrats during the hearing, isn’t a classic net neutrality issue because Verizon was throttling all content, not favoring particular content or types of content. But Verizon’s behavior might have fallen under the general conduct rule against unreasonably interfering with connections, and the incident does demonstrate the types of enforcement problems that can emerge when the FCC isn’t empowered to protect consumers.