So You Say You Support Net Neutrality…March 20, 2018
More than eight in ten American voters support strong net neutrality protections. So, it should be a no-brainer for Congress to act to guarantee strong open internet protections. The most straightforward way to do this would be for Members to co-sponsor and then vote for the Congressional Review Act Resolution (CRA) to restore the popular 2015 net neutrality rules. But, nothing in politics is ever that simple.
Senator John N. Kennedy of Louisiana has been flirting for months with the idea of being the fifty-first (read: deciding) vote for the CRA in the Senate. Yet, just last week, Mr. Kennedy introduced the Senate companion to Representative Marsha Blackburn’s phony “net neutrality” bill. This legislation is at least fourteen steps in the wrong direction. Not only does it fail to restore the net neutrality protections consumers have come to expect and rely upon, but it could have negative intended and unintended consequences for a range of internet access issues unrelated to what we often think of as net neutrality. My awesome colleague, Daiquiri Ryan, put together this video explaining the worst of the worst parts of the Blackburn/Kennedy bill. This blog post takes a deeper dive into the legislation.
First, to give credit where credit is due, the bill does prohibit internet service providers (ISPs) from blocking and throttling content. But, in the context of the rest of the bill, this is not even half a loaf. The bill prevents the Federal Communications Commission from expanding ISP “internet openness” obligations beyond no blocking/no throttling “under any provision of law.” The term “internet openness” is not defined in the legislation, so it could take multiple court battles over multiple years if this bill is ever enacted before we fully understand what precisely is covered. But, it is clear now that the legislation would hamstring the FCC’s ability to respond to new and changing technologies. Moreover, depending on how courts interpret the “internet openness,” the bill could also stop the FCC from intervening when ISPs: 1) redline and refuse to provide internet service—or engage in discriminatory pricing—based on race or some other proxy; 2) choose winners and losers in the marketplace by engaging in paid prioritization to create internet fast lanes; 3) zero-rate their own affiliated content to drive consumers to their own sites; 4) charge rivals exorbitant interconnection fees to connect to the larger world wide web; 5) refuse to be transparent about their engagement in these and other practices; or 6) some combination of any and all of the above. Most of these practices relate to—and violate the principles of—net neutrality.
But, the Blackburn/Kennedy legislation goes even further. It prevents the FCC from initiating its own investigations and enforcement actions related to “internet openness.” Because, as described above, the bill fails to define “internet openness,” courts may interpret the language to stop the FCC from 1) enforcing the 21st Century Communications and Video Act, which requires closed captioning, and preventing discrimination against the deaf and blind; 2) mandating physical interconnection between networks, something long considered essential to ensuring service; 3) enforcing existing quality of service standards as the telephone network transitions to VOIP; or 4) enforcing its own rules that make data roaming possible—all issues not typically considered under the banner of “net neutrality.”
And, it doesn’t stop there. The Blackburn/Kennedy bill makes sure the states can’t step in to protect consumers from redlining or insist on universal service in the FCC’s absence. On top of that, the bill’s unprecedented preemption language can also be read—again, depending on which court is doing the reading—to supersede not only states and localities’ regulatory and enforcement authorities, but also their traditional power as purchasers to require particular provisions—in this case, open internet requirements—in their contracts.
Oh, and the bill defines broadband internet—and “any advanced telecommunications capability”—as a Title I information service. This raises ambiguity as to what, in addition to broadband internet, the bill would classify as an “information service.” It also likely prevents the FCC from enforcing universal service requirements, threatening to leave rural residents out of the digital age.
I could go on. But, you get the idea—the Blackburn/Kennedy bill is not something any serious supporter of an open internet should champion. In fact, the Blackburn/Kennedy bill is actually sweeping deregulatory legislation—a gift to the largest ISPs—being marketed as net neutrality legislation. Tell Senator Kennedy that if he really wants to save net neutrality, he should support the CRA.