FCC’s Wheeler Testifies Before House Subcommittee, Defends Record on Net Neutrality

WASHINGTON, May 20, 2014 – Federal Communications Commission Chairman Tom Wheeler came under heavy criticism during a Tuesday hearing before the House Energy and Commerce Subcommittee on Communications and Technology, with many members expressing disapproval of the agency’s recent performance, particularly over the issue of network neutrality.

Rep. Greg Walden, R-Ore., criticized the agency’s “selective inaction,” warning that it was treading in “rough waters.” He criticized the agency for failing to complete its quadrennial review of broadcast ownership rules.

Walden also expressed disapproval of the move to reclassify broadband as a Title II, or common carrier, telecommunications services. Doing so would give the FCC authority to “second-guess business decisions.”

“The modern communications landscape bears no resemblance to the world Title II is meant to regulate,” Walden said. The reclassification of broadband service providers…will harm consumers, halt job creation, curtail innovation, and stifle investment… We should also be aware that [reclassification] opens the door for states to regulate the Internet.”

Other Republicans on the subcommittee shared Walden’s criticism. Rep. Fred Upton, R-Mich., expressed frustration over the partisanship that the Commission had shown, citing reports of items being shared with Democrats 24 hours before Republicans.

“Regardless of political affiliations, commissioners must be given adequate and equal time to consider the items on which they’re going to vote,” Upton said.

Upton also urged a “light touch regulatory scheme” as the key to America telecom industry success. “Subjecting [broadband] to burdensome [regulations] is a leap in the wrong direction,” he said.

Others, particularly Democratic representatives, agreed with the premise behind net neutrality, but disagreed with what they called the FCC’s half-way approach.

“The time has come to end the legal gymnastics and stop the lobbying games being played by the big broadband providers,” said Rep. Henry Waxman, D-Calif. “You should use your Title II authority as a backstop authority to protect the open internet. If you want to proceed with Section 706, that’s fine – but you shouldn’t water down the open internet rules to fit Section 706. Instead, you should get the substance right and invoke Title II as an independent basis of authority.”

Wheeler defended the Commission’s actions, listing a number of areas on which the agency had made progress on, including the forthcoming incentive auction of radio frequencies. He also pointed to a successful ruling on emergency 911 texting, which allows deaf individuals to communicate with emergency responders, as well as a effort to regulate cell phone location information.

“As wireless usage increases and as it replaces… wireline connections inside, and as GPS usage has increased, there’s been a fascinating reality that location accuracy has actually declined,” Wheeler said. “We got a notice on how to [solve] that because that’s literally a matter of life and death.

As for net neutrality, Wheeler explained that D. C. Circuit court’s January 2014 decision affirmed the Commission’s authority for net neutrality under co-called Section 706 of the 1996 Telecommunications Act. This, he said, provided a “road map” to deal with the open internet.

“When the consumer buys access to the Internet, they are buying access to the full Internet and that’s what our rules try to protect,” Wheeler said. “[We ought to] explore the power granted by Section 706, keep asking how Title II fits in, but develop a regulatory process that looks forward, not backward, because what we need is a regulatory process for the 21st century.”

Grilling Wheeler, Tennessee Republican Rep. Marsha Blackburn said that his actions had inspired “a great deal of uncertainty” among content providers, including those offering telemedicine services.

Wheeler agreed that it was important to conduct cost-benefit analysis in decision-making.

“In this rulemaking, we specifically ask what are the costs of one approach or another and what are the benefits so that we can collect that information and have that kind of analysis.”

“Our effort is to represent the American people, not company A or B,” he said.

When asked what types of prioritization were acceptable, Wheeler replied that while the courts had asked the Commission to judge prioritization on a “case-by-case basis,” the Commission is now asking the public whether it should be judged “generically.”

Waxman expressed concern that asking the public when paid prioritization is permissible will result in “a lot of ambiguity” and a lot of litigation.

“I believe bright lines will be a lot better for the market and innovation,” Waxman said.

Rep. Steve Scalise, R-La., questioned Wheeler’s motivations for only targeting ISPs and not content providers. He asked whether the Chairman had “an ax to grind” against broadband providers.