March 18, 2016 | By Ernesto Falcon

Ban Rate Regulation or Attack On Net Neutrality Protections? Congress Seems Confused

The House Energy and Commerce Committee recently approved H.R. 2666, the No Rate Regulation of Broadband Internet Access Act. The legislation attempts to codify Federal Communications Commission (FCC) Chairman Wheeler’s pledge not to use the Open Internet Order to regulate broadband rates. This seems like a straightforward task and technically it is a straightforward task. However, some members of Congress want to use this bill to fundamentally undermine the central purpose of the Order itself.

Background

A little over a year ago, the FCC published its Open Internet Order, which clarified the FCC’s authority to regulate Internet service providers (ISPs) and established today’s network neutrality rules. However, the FCC also had to use a regulatory tool called forbearance to avoid applying the statutory obligations of the Communications Act where it wasn’t necessary to protect consumers and competition.

Chairman Wheeler also promised that the FCC would not regulate broadband rates. However, some Congressional representatives claim to be worried that future Chairs might not feel bound by this promise. So they want to turn that promise into a legal obligation.

Enter H.R. 2666—No Rate Regulation of Broadband Internet Access Act

Which brings us to H.R. 2666. Proponents characterize it as simply codifying Chairman Wheeler’s promise not to regulate rates. Here’s the problem: the original bill did not define what it meant by rate regulation.

That’s a fatal flaw, because it could effectively transform the FCC’s legal authority into a guessing game. FCC efforts to protect consumers or preserve competition would be subject to judicial challenge as long as a clever lawyer could find a way to claim that an FCC decision regulated a rate and violated HR 2666. That includes things such as banning paid prioritization, ensuring that your billing was accurate and truthful, and controlling costs in the Universal Service Fund subsidy program. It may also include investigations into new practices such as zero-rating and taking action if they violate network neutrality rules. Amendments to narrow and clarify what the bill does to avoid this Pandora’s Box approach to litigation were firmly rejected early in the process.

Perhaps in an attempt to rectify the error in the original bill when presented before the full Energy and Commerce Committee, Chairman Walden (R-OR) offered an 11th hour amendment to HR 2666 that would provide a definition of rates as well as some consumer protections before approving the bill for consideration by the House of Representatives. However, given the lateness of the amendment and lingering questions about what is and is not covered by the new legislative text (at one point Congressman Lujan (D-NM) whipped out an old school dictionary when suggesting where to find a definition of rates), Members of Congress remain divided.

As the Bill Stands, EFF Remains Concerned About H.R. 2666

We’re all for codifying Chairman Wheeler’s promise. It’s important that any federal agency’s authority be clear—and clearly limited. However, this bill seems intended to do something very different, and undermine the efforts of millions of Internet users to protect net neutrality. As it turns out, there’s an amendment on the table that could bring the bill back to its stated purpose. We urge the House to look carefully at the language and rethink this dangerous legislation.


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