Congressman Protests FCC Attempt to Heap 80 Years of Regulatory Baggage on Broadband

By Josh Long

Congressman Bob Latta this week introduced legislation to prevent the FCC from regulating the Internet under an old regime that he says would impose “monopoly-era telephone rules and obligations on the 21^st Century broadband marketplace.”

In its new proposal to oversee the Internet, the FCC said it is exploring its legal authority under Title II of the Communications Act of 1934. Latta’s bill would prevent the agency from reclassifying broadband Internet access under Title II as a telecommunications service.

The FCC previously has treated broadband as an information service, subjecting it to regulations that are distinct from a heavily regulated telecommunications regime that dates back to an era of utilities.  

“Reclassification would heap 80 years of regulatory baggage on broadband providers, restricting their flexibility to innovate and placing them at the mercy of a government agency,” said Latta, an Ohio Republican, in a statement.

Sarah Criser, a spokeswoman for Latta, said the legislation does not have any co-sponsors at this time.

The bill excuses from the definition of “common carrier” the provider of an information service, which would include a broadband Internet access service. The FCC would be barred from treating a provider of an information service as a telecommunications carrier under the Communications Act.

“The Internet is a powerful engine for economic growth that has remained open, free, and accessible without government regulation since its entrance into the public sphere,” Section 1 of the bill declared. “Title II of the Communications Act of 1934 was designed for the monopoly telephone system in 1934 and has its origins in 19^th century shipping regulations. Imposing the obligations and requirements of Title II of such Act on broadband Internet access service would severely harm broadband investment and create myriad negative unintended consequences.”

Other critics of Title II regulation include AT&T, the National Cable & Telecommunications Association and the ITTA, an organization that represents mid-sized telecommunications carriers.

“Congressman Latta’s legislation wisely recognizes the potential threat excess regulation poses to the future of the Internet and broadband investment,” ITTA President Jenny Morelli said in a statement. “The FCC should look no further than the success the Internet has been able to achieve absent Title II regulation and exercise restraint when contemplating future regulation.”

Earlier this month, the FCC voted 3-2 to propose Net neutrality rules, its third attempt to regulate the Internet after previous orders were rejected by appellate judges in Washington, D.C. The two Republicans on the commission, Ajit Pai and Michael O’Rielly, dissented. 

The FCC also has proposed regulating the Internet under Section 706 of the Telecommunications Act of 1996. Sen. Ted Cruz (R-Texas) isn’t happy with that idea either, earlier this month declaring his intent to strip the agency of the authority to take actions under the provision of the 1996 Act.

“Congress, not an unelected commission, should take the lead on modernizing our telecommunications laws,” Cruz said in a May 14 statement.

The Net neutrality proposal spearheaded by FCC Chairman Tom Wheeler is similar to the FCC’s 2010 Open Internet Order; a federal appeals court in Washington, D.C. overturned that order in January. 

Wheeler has proposed requiring broadband providers to disclose their network-management practices to consumers, and fixed high-speed carriers like Comcast, AT&T and Verizon would be forbidden from blocking lawful content, applications, services, or non-harmful devices. The FCC further recommends barring fixed broadband providers from engaging in “commercially unreasonable practices,” a term that is likely to be vigorously debated in the coming months.

The FCC has opened a 60-day period for initial comments on its proposal, including asking whether the agency should ban agreements in which broadband providers such as AT&T and Verizon could charge content providers like Netflix fees for faster access to end users. In its Open Internet Order four years ago, the FCC found broadband providers have incentives to block open access to the Internet, including potentially degrading service that was not subject to such priority agreements.