Bill Would Prevent Future FCC Net Neutrality Intervention

Published February 6, 2018

In the wake of the Federal Communications Commission (FCC) vote to undo a 2015 decision by former FCC Chairman Tom Wheeler classifying the internet as a public utility, U.S. Rep. Marsha Blackburn (R-TN) is sponsoring a bill that would prohibit the agency from enacting similar power grabs in the future.

FCC commissioners on December 14, 2017 voted to undo the Open Internet Order, a 2015 rule claiming FCC authority to regulate internet service providers’ (ISPs) networking traffic decisions.

H.R. 4682, the Open Internet Preservation Act, would classify broadband internet service providers (ISPs) as “information services” subject to regulation under Title I of the Telecommunications Act of 1934. That would prevent FCC from using Title II of that law to assert regulatory powers over the internet.

Blackburn’s bill would also prohibit ISPs from blocking or slowing down lawful content and would allow paid prioritization agreements between content providers and network companies.

‘Congress Is Who Should Decide’

Blackburn says her bill reestablishes Congress’ lawmaking authority.

“Let’s settle this issue: Congress is who should decide how this is going to be approached, not someone who is a political appointee and is there for a short period of time,” Blackburn told Budget & Tax News. “We need to end this change of policy every time you turn around with a different administration at the FCC.”

Babette Boliek, associate dean for research at Pepperdine University, says Congress makes laws, not FCC or other executive-branch agencies.

“It is not the right, legally, of the FCC to suddenly craft a new statute, sort of out of whole cloth using the old statute from 1934, which is essentially what they did,” Boliek said.

‘No Blocking, No Throttling’

Blackburn says her bill is about real net neutrality, not government control.

“Here is one other thing to realize in the midst of all of this: the term ‘net neutrality’ has been coopted,” Blackburn said. “Net neutrality started out meaning ‘no blocking, no throttling.’ It was coopted and became ‘government control of the internet,’ letting the FCC be the arbiter of all things internet. We all agree on the free and open internet principles of no blocking and no throttling. We will codify that so it will not change with every single administration.”

‘A Free-Speech Issue’

Blackburn says her bill would protect individuals’ free speech rights.

“The reason it matters is that it is a free speech issue,” Blackburn said. “When I talk to my constituents, they do not want a government-controlled internet. They do not want the federal government assigning priorities and values to content. Our goal is to preserve a free and open internet, and to make certain that innovators are going to be able to continue to innovate in this space and not have the federal government controlling and putting a chokehold on that pipe.”

The aftershocks of FCC’s brief flirtation with Title II regulation are still being measured, Boliek says.

“For more time than not, it [the internet] has been lightly regulated as Title I,” Boliek said. “Title II was a very brief moment in time. What we found, in the brief period of time when it was Title II, was that the rate of investment in the infrastructure decreased. It’s unclear, and there are different numbers out there, but there has definitely been a decrease in the rate of investment out there.”