General

Originally published by eWeek. Reposted here with permission.

IIA Proposes Net Neutrality Legislation to Solve FCC Title II Dilemma

by Wayne Rash

At first, Rick Boucher’s idea seemed too good to be true. The former Democratic Congressman from Virginia was proposing an idea so radical that I had to check my notes to make sure I hadn’t been daydreaming.

The concept was a bipartisan bill that would give both Democrats and Republicans something each party wants and little or nothing they don’t.

Boucher, honorary chairman of the Internet Innovation Alliance, offered draft legislation that would give the Democrats guaranteed, long term, net neutrality and Republicans something they really want, which is to return Internet access to being an information service rather than a telecommunications service, as it is under Title II. Perhaps more important, the bill that Boucher proposes doesn’t attempt to do anything else.

Boucher’s reasoning is based on a recent change of heart in Republican circles regarding net neutrality. Lately, it seems the party is OK with the concept as long as they eliminate the real problem they see with Title II, which is the reclassification. “What is so different today is that the Republicans have offered to the Democrats that range of network neutrality protection,” Boucher said.

“The Republicans have said that they’re willing to put strong protections for net neutrality in place and continue to have protection for information services,” Boucher explained. He said that for their part, the Democrats have told him that they’re willing to work with the Republicans as long as any legislation doesn’t become loaded down with provisions they can’t support.

“That way there’s only two moving parts,” Boucher said. The problem so far is that nobody on the Democratic side of the aisle has moved forward with discussions on how to draft legislation that would get bipartisan support. Now, with the move by the FCC to reclassify Internet access under Title II, Boucher thinks there may be an opening.

In a May 21 press conference held the day before our interview, Boucher and legal scholar Kathleen Sullivan, who is the former Dean of the Stanford Law School, pointed out how recent events could well result in all sides losing what they want. Sullivan pointed out that current legal challenges to the Title II reclassification could, and in fact are likely to, put the entire move by the FCC on hold.

But Boucher pointed out the looming danger that could come about in two years, a Republican win in the White House and a new, Republican-chaired FCC. He said that such an event could effectively undo everything the Democrats want, but also might undo everything the Republicans want, too.

Either way, it could tie up Internet regulation for years and, in the process, hurt innovation through years of uncertainty.

But there’s another potential stumbling block in this otherwise simple idea: that is, will the President sign such legislation? Boucher thinks he will, if only because the White House has been pushing the Title II reclassification is as a way to get net neutrality in place.

Unfortunately, as many people (including me) have mentioned, the FCC’s action doesn’t guarantee anything. A future FCC or a future White House can undo it in a heartbeat. This is why Boucher thinks bipartisan legislation is really the only good way to assure that net neutrality stands the test of time. Once it’s written into law, even the FCC can’t change it.

Of course the FCC doesn’t want to try, just as it has tried to rewrite the Communications Act to say what it wants. Sullivan pointed this out in her statement at the press conference as did Boucher, who is one of the authors of the current Communications Act.

“The Communications Act distinguishes between telecommunication services and information services,” Sullivan said in her presentation. “The Supreme Court has properly defined cable internet use as an information service. The FCC has reversed course and acted outside of the statute. Congress has not authorized this.”

By crafting and passing bipartisan legislation, both sides of the aisle in Congress can avoid outcomes they don’t want, Boucher said. “Democrats can protect net neutrality and Republicans can achieve a top policy priority which is to treat broadband as an information service.”

Boucher said he hopes that the House and Senate Commerce Committees can get the ball rolling. He pointed out that these committees tend to stay away from partisan politics and perhaps because of that continue to function in what is otherwise a politically gridlocked Congress.

Unfortunately, just because a bill makes a lot of sense, fixes a problem that many people believe badly needs fixing and is supported by both parties doesn’t mean it’ll ever see the light of day as a piece of proposed legislation.

The sad fact remains that despite general agreement on the need for a return to the way that the Internet was regulated before the Title II reclassification (meaning lightly if at all) and the agreement by nearly everyone from the Supreme Court on down that the Internet is an information service, getting legislation through Congress is problematic under even the best circumstances.

One can hope that Rick Boucher and the IIA can get this bill past dead center, but hope is about all that’s left.