WASHINGTON, February 20, 2009 – In what could potentially be an opening salvo in a renewed congressional battle over network neutrality, Sen. Jim DeMint, R-S.C., wants to use a parliamentary tactic to force his Democratic colleagues to vote on whether the Federal Communications Commission should be stripped of the power to re-impose the Fairness Doctrine on broadcast radio.
The Fairness Doctrine, which was scrapped in 1987 after the FCC found that it was necessary to foster diversity of viewpoints in the broadcast medium, mandated that, as a condition of their licenses, broadcasters provide an opportunity for both sides of view when reporting on controversial issues.
A few statements by Democratic legislators have raised the ire of conservative activists, who fear that Democrats intend to revive the old rule as a way of gagging talk radio, a medium widely seen as favorable to the political right.
Now that Democrats control both houses of Congress and the White House, the prospect of a Democrat-controlled FCC makes many Republicans wary that, after more than 20 years, the Fairness Doctrine might be revived.
FCC commissioner Robert McDowell, a Republican, raised an alarm in August when voting against an order reprimanding broadband internet provider Comcast for improper network management practices.
McDowell warned that the commission’s vote was a sign of a resurgent Fairness Doctrine. “I think it won’t be called the Fairness Doctrine by folks who are promoting it,” McDowell said at the time. “I think it will be called something else and I think it’ll be intertwined into the net neutrality debate.”
McDowell’s warnings on net neutrality have nothing to do with the Fairness Doctrine, said Marvin Ammori, general counsel for Free Press, the non-profit group that, with Public Knowledge, complained about Comcast’s network management practices at the FCC.
“Commissioner McDowell is wrong,” said Ammori. “He is simply confusing the issue.”
Ammori said that the only relationship he could find between the Fairness Doctrine and calls for an open Internet are “misguided attempts by those like Commissioner McDowell to confuse the two.” While Ammori called internet openness an issue with “wide political and public support on both sides of the isle,” he derided the Fairness Doctrine as “long defunct…with deservedly little political support.”
The lack of support alluded to by Ammori was confirmed by Acting FCC Chairman Michael Copps, a Democrat, who has said he has no intention of reviving the old rules without congressional intervention. Copps called the controversy “kind of yesterday’s fight,” and said such a choice should be left up to Congress.
Presidents Ronald Reagan and George H.W. Bush each vetoed legislation that would have revived the Fairness Doctrine.
President Obama has denied support for reviving the doctrine. But because a variety of court rulings have affirmed the FCC’s power to impose a variety of free speech constraints upon those who transmit over the airwaves, DeMint’s “Broadcaster Freedom Act,” S. 34, would permanently strip the body of any such authority.
The bill has languished since its introduction last month. DeMint wants to offer similar language as an amendment to the D.C. Voting Rights Act, which Senate Majority Leader Harry Reid, D-Nev., has placed on the Senate’s legislative calendar. DeMint could offer his amendment as early as Monday afternoon.
In a statement, Senator DeMint commended President Obama’s opposition to the doctrine. Nevertheless, DeMint wants his colleagues to take a position on it, one way or the other. “I intend to seek a vote on this amendment next week so every senator is on the record,” he said, asking his fellow senators: “Do you support free speech or do you want to silence voices you disagree with?’
Although the D.C. Voting Rights Act is the first item on the Senate’s legislative calendar when it reconvenes next week, staffers for DeMint were unsure whether Reid would allow any amendments to the legislation. But a press spokesman for Reid said that the bill would be open for amendments from the floor.
The Senate resumes business Monday at 2:00 p.m., and is set to consider both the D.C. Voting Rights Act and the nomination of Representative Hilda Solis, D-Calif., as Secretary of Labor.
GOP Congresswoman Says FCC Puts Politics Over the Law
‘Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats.’
WASHINGTON, October 28, 2022 – Rep. Cathy McMorris Rodgers, R–Wash., accused the Federal Communications Commission of politicized actions in excess of its statutory authority, in a letter sent in September and apparently released by the agency last week.
To prevent possible FCC overreach, McMorris Rodgers, the ranking member of the House Energy and Commerce Committee, asked FCC Chairwoman Jessica Rosenworcel to provide a list of pending and expected rulemakings, and the congressional authorizations therefor. Rosenworcel responded earlier this month in a letter released with the congresswoman’s original correspondence.
The Washington Republican wrote that the Biden administration has been overly reliant on executive orders and cited recent Supreme Court precedent as evidence. McMorris Rodgers highlighted the Environmental Protection Agency’s loss in West Virginia v. EPA, in which the Court invoked the “major questions doctrine,” a legal doctrine limiting of the executive branch’s ability to permissively interpret Congress’s statutory language. She also referenced the Court’s rejection of the Center for Disease Control’s eviction moratorium and the Occupational Health and Safety Administration’s vaccine or testing mandate.
“Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats,” McMorris Rodgers wrote.
“I assure you the Committee and its members will exercise our robust investigative and legislative powers to not only forcefully reassert our Article I responsibilities, but to ensure the FCC under Democrat leadership does not continue to exceed Congressional authorizations,” she added.
Is net neutrality coming back?
In April 2021, McMorris Rodgers co-signed a letter with numerous congresspeople urging Rosenworcel to reject net neutrality, a policy supported by the chairwoman.
Today’s FCC is evenly split between Republicans and Democrats, one commissioner short of the standard five. President Joe Biden nominated Gigi Sohn for the fifth spot, but her nomination is stalled due to Republican opposition in the Senate. Since Sohn supports net neutrality, some experts believe the FCC may once again pursue the policy should Sohn be confirmed.
Johnny Kampis: Democrats Needlessly Push Another Round of Net Neutrality Legislation
The Net Neutrality and Broadband Justice Act may harm the ability of broadband infrastructure to grow.
It ain’t broke, but Democrats keep trying to “fix” it.
July 28 saw the introduction of a bill to reimplement Title II regulations on broadband providers, paving the way for a second attempt at “net neutrality” rules for the internet.
Led by Sen. Ed Markey, D-Mass., along with co-sponsors Sen. Ron Wyden, D-Ore., and Rep. Doris Matsui, D-Calif., the comically named Net Neutrality and Broadband Justice Act would classify ISPs as common carriers and give the Federal Communications Commission significant power to regulate internet issues such as pricing, competition, and consumer privacy.
Markey claims that the deregulation of the internet under former FCC Chairman Ajit Pai left broadband consumers unprotected. But as data has shown, and Taxpayers Protection Alliance’s own investigation highlighted, no widespread throttling, blocking or other consumer harm occurred after the Title II rules were repealed.
Randolph May, president of the Free State Foundation, noted after Markey’s bill was released that nearly all service providers’ terms of service contain legally enforceable commitments to not block or throttle the access of their subscribers to lawful content.
Markey said his legislation, which would codify broadband access as an essential service, will equip the FCC with the tools it needs to increase broadband accessibility.
The country already has the tools it needs to close the digital divide, with billions in taxpayer dollars flowing to every state to boost broadband access. For example, less than $10 billion in federal funding was dedicated to broadband in 2019, but an incredible $127 billion-plus in taxpayer dollars will be dedicated to closing the digital divide in the coming years. That doesn’t even count the nearly $800 billion in COVID-19 relief and stimulus funding that could be used for multiple issues, including broadband growth.
The bill’s proponents say that the FCC can foster a more competitive market with the passage of the legislation. FCC’s data already indicate the market is extremely competitive, with 99 percent of the U.S. population able to choose between at least two broadband providers. That doesn’t even account for wireless carriers and their rapid development of 5G.
The Net Neutrality and Broadband Justice Act may instead harm the ability of broadband infrastructure to grow without funneling even more taxpayer money toward the cause. Studies have shown that private provider investment increased after the regulatory uncertainty of Title II rules were removed. Prior to the reversal of the 2015 Open Internet Order, broadband network investment dropped more than 5.6 percent, the first decline outside of a recession, the FCC reported.
US Telecom reported that capital expenditures by ISPs totalled $79.4 billion in 2020 and grew to $86.1 billion in 2021.
Michael Powell, president and CEO of NCTA – The Internet & Television Association, called the issue of net neutrality “an increasingly stale debate” with justifications for it that “seem increasingly limp.”
“In the wake of the once-in-a-lifetime infrastructure bill, we need to be focused collectively on closing the digital divide and not taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason,” he said. “Building broadband to unserved parts of this country is a massive, complex, and expensive undertaking. Slapping an outdated and burdensome regulatory regime on broadband networks surely will damage the mission to deploy next-generation internet technology throughout America and get everyone connected.”
Again, the specter of Title II regulations rears its ugly head for no discernible reason other than the government’s insatiable need for control. The broadband market has proven itself as a market that functions better with a light-touch approach, so we hope that Congress says not to this misguided bill.
Johnny Kampis is director of telecom policy for the Taxpayers Protection Alliance. This piece is exclusive to Broadband Breakfast.
Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to firstname.lastname@example.org. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.
Democrats Seek to Codify Net Neutrality as Fifth FCC Commissioner Hangs
Some say the bill would add heavy regulation that will harm investments and consumers.
WASHINGTON, August 1, 2022 – Democratic Senators introduced Thursday a bill that would enshrine into law the concept of net neutrality, which would prevent internet service providers from tinkering with internet traffic, in a move that comes ahead of midterm elections that could alter whether the Federal Communications Commission gets its Democratic fifth commissioner to take unilateral action on the matter.
The Net Neutrality and Broadband Justice Act would give the FCC regulatory authority over broadband by classifying those services as Title II as defined in the 1934 Communications Act. Under Title II, the FCC would have greater regulatory muscle to make providers respect the principle of common carriage – that is, the traffic on their networks will not be throttled, sped up or given preference. Under the current light touch Title I – which was reinstituted by the 2017 commission under chairman Ajit Pai – the FCC does not have that authority, and the commission has previously been blocked by courts to bring net neutrality under Title I.
“My legislation would reverse the damaging approach adopted by the Trump FCC, which left broadband access unregulated, and consumers unprotected. It would give the FCC the tools it needs to protect the free and open internet, creating a just broadband future for everyone in our country,” Senator Edward Markey, D-Mass., said during a virtual press conference hosted by Public Knowledge on Thursday.
Markey noted that the majority of Americans and Republicans favor restoring net neutrality rules in the country.
Public Knowledge, an advocacy group for an open internet, was co-founded by Gigi Sohn, who was nominated by President Joe Biden to be the fifth FCC commissioner. The vote to confirm in the Senate has not happened yet, as some Republicans have complained about Sohn’s ability to be impartial on the commission.
“We’ve gone 544 days into the Biden administration without a fully functional agency. It’s time for Senate leadership to end this senseless delay and get the agency back to full capacity,” said Matt Wood, vice president of policy and general counsel at Free Press Action, in a press release welcoming the bill.
Reintroduction of bill comes as Sohn’s nomination to FCC appears to falter
Sohn, who would be the party tiebreaker on the commission, would have bolstered the FCC’s chance to press for a reclassification of broadband services under Title II. But the longer a vote is not held, the less optimistic some say they are getting that a vote will be held before a midterm election in November that could flip the Senate red.
“Confirmation is still possible, but with the extended August recess and looming midterm election, there aren’t a lot of legislative days to get the job done,” said former FCC Chairman Richard Wiley at an event late last month.
Republican Commissioner Nathan Simington previously said that he would welcome congressional action on net neutrality – instead of an FCC vote on it.
“I have previously stated that the FCC’s 2015 Net Neutrality rules were the right approach,” said FCC Commissioner Geoffrey Starks in a press release. “That approach is undergirded by a voluminous record and overwhelming public support, and it has been tested in court. The Net Neutrality and Broadband Justice Act would codify just that,”
The bill comes after FCC Chairwoman Jessica Rosenworcel has repeatedly said that she believes net neutrality should be the guiding principle for the internet economy. Rosenworcel was defiant in her support of the principle in response to a letter from Republican representatives who encouraged her not to change her mind on it.
She added in a statement after the bill’s introduction that despite the FCC having the authority it needs to implement net neutrality, “legislation that helps ensure it is the law of the land is welcome.”
“For anyone who wants more innovation, more voices and less corporate control of the internet, net neutrality is an absolute no-brainer,” said Ron Wyden, D-OR, who co-introduced the bill. In 2018, Verizon admitted to throttling the wireless speeds used by California firefighters who were working on a large fire – one of the examples used to illustrate the imposition of such rules.
As such, California has gone its own way in lieu of inaction from Washington. The state won a court battle this year from broadband industry that challenged its own net neutrality law. The law made AT&T pull free sponsored applications to residents.
Critics of the net neutrality measure from the broadband industry
But broadband service providers and the commission that reversed net neutrality rules don’t see it that way. They say that regulations imposed by a net neutrality framework hinders innovation and competition in the market – including being able to provide free access to certain applications.
Michael Powell, CEO of trade association NCTA, said this bill will have a negative effect on closing the digital divide.
“In the wake of the once-in-a-lifetime infrastructure bill, we need to be focused collectively on closing the digital divide and not taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason,” he said.
“Slapping an outdated and burdensome regulatory regime on broadband networks surely will damage the mission to deploy next-generation internet technology throughout America and get everyone connected,” said Powell.
The Wireless Internet Service Providers Association also came out against the bill, saying heavy regulation would hamper their ability to serve underserved areas of the country. “The bill’s Title II requirements would create real threats to their ongoing viability,” the release said.
“Net neutrality may be a mixed bag, but common carrier regulation would inhibit competition, private investment and innovation, and further confound the complex task of eradicating the digital divide,” it added.
Another trade group USTelecom said it is concerned such regulation would hamper investments in broadband networks. “There is bipartisan support for net neutrality, but legislative proposals that would put any of this progress at risk are not the right answer,” said CEO Jonathan Spalter in a release. “Let’s keep our focus on moving consumers’ internet experiences forward, not backward.”
Non-profit research institution the Free State Foundation added that this type of bill will impose heavy-handed regulation that will harm consumers.
“[T]here is no present evidence, and there hasn’t been any for years, that ISPs have engaged in any deliberate discriminatory conduct,” said the FSF in a press release. “Almost all ISPs’ terms of service contain legally enforceable commitments not to block or throttle subscribers’ access to lawful content.
“To the extent that a couple of old incidents are cited that conceivably would run afoul of stringent anti-discrimination prohibitions, they have been isolated and quickly remedied,” the FSF added. “That’s why the net neutrality advocates are left to conjecture about what ‘might,’ ‘could,’ or ‘possibly’ happen absent new regulation, rather than identifying any existing problem warranting costly new regulatory mandates.”
With reporting by Riley Haight.
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