Today, Sen. Markey and Reps. Waxman and Eshoo introduced the Open Internet Preservation Act of 2014, a bill that would reinstate the Federal Communications Commission’s Net Neutrality rules struck down by the DC Circuit Court last month. The following statement may be attributed to TechFreedom President Berin Szoka:
This bill unnecessarily restores Net Neutrality regulations that were themselves unnecessary, while failing to protect the Internet from the real threat: the FCC’s vast new powers to regulate the Internet. Democrats lamented the D.C. Circuit’s decision as a great loss for Net Neutrality, while Republicans claimed it as a victory over regulation. Both are wrong: the decision interpreted Section 706 as authorizing the FCC to regulate any company within its jurisdiction based on the argument, however contrived, that regulation would somehow promote broadband. This interpretation opened the Pandora’s Box of Internet regulation by both the FCC and state regulators. This bill would do nothing to close that box, leaving the FCC free to require anything from copyright filtering to micromanagement of smart home devices. This bill wasn’t going to pass a divided Congress anyway, but its sponsors could have at least begun the conversation about how to focus Section 706 on what Congress really intended: clearing barriers to broadband deployment and competition.
The bill’s sponsors claim that, as broad as Section 706 is, the FCC still can’t prevent Net Neutrality abuses by governing broadband providers as common carriers. In fact, so long as the FCC leaves room for “individualized negotiation,” the decision would allow the FCC to prohibit blocking. The blocking rule might have been upheld had the FCC only asked the court to supplement its brief to address the D.C. Circuit’s December 2012 decision upholding the FCC’s requirement that wireless carriers not block their competitors’ customers from roaming on their networks.
While this bill purports to offer a stopgap solution, it would restore the Open Internet Order rules indefinitely if the FCC proceeds on a case-by-case basis, as Chairman Wheeler has said he will do. The policy statement Wheeler apparently plans to issue, instead of formal rules, would not count as the “final action” required by the bill to sunset the Open Internet Order’s rules — or required by the courts to evaluate the legality of the FCC’s new approach holistically. So whatever the theoretical limit on the FCC’s power to regulate Net Neutrality, or the Internet in general, the reality could be much more draconian.
Szoka and TechFreedom Senior Fellow Geoff Manne were the first to explain the implications of the court’s interpretation of Section 706 in a Wired op-ed shortly after the decision. Szoka is available for comment at media@techfreedom.org.