Gearing up for an anticipated FCC vote next month on revised net neutrality rules that are likely to reclassify broadband Internet services as governed under Title II of the 1934 Communications Act, Republican leaders of the House and Senate Commerce committees unveiled draft legislation last Friday that would (1) restore FCC rules against data blocking and data throttling that were overturned a year ago by the D.C. Circuit Court of Appeals, and (2) prohibit the FCC from regulating broadband as a Title II telecommunications service. 

The draft measure, which has yet to be titled, would apply to providers of both wireline and wireless broadband services and would define broadband access service as any mass market wire or radio service that enables users to transmit or receive data “from all or substantially all Internet endpoints.”  In addition to reinstating previous FCC rules against the blockage or throttling of lawful web traffic, with certain exceptions for reasonable network management, the draft bill would prohibit paid prioritization arrangements.

Broadband ISPs would be barred from prohibiting attachment of non-harmful consumer devices to their networks and ISPs would be required to adhere to principles of transparency in managing their networks. 

Instead of regulating broadband under Title II, the FCC would be required to enforce draft bill provisions through complaint adjudication.  The draft measure would also clarify Section 706 of the 1996 Telecommunications Act to specify that neither the FCC nor state commissions may rely on Section 706 as a grant of authority to regulate broadband.  Under Section 706, the FCC is required to promote rapid and timely deployment of advanced telecommunications capabilities, and the D.C. Circuit Court of Appeals concluded last year that the FCC could adopt net neutrality rules pursuant to Section 706 as long as such rules do not attempt to subject non-common carrier services, such as broadband, to common carrier regulation.   

In remarks to the press, House Energy and Commerce Committee Chairman Fred Upton (R-MI) proclaimed that the draft bill provides a “thoughtful path forward” that ensures “consumers remain number one and in control of their online experience.”  Congressional Democrats, however, were less enthused, with Senator Ed Markey (D-MA) lamenting that the bill represents “a legislative wolf in sheep’s clothing” that offers “few safeguards while undermining basic consumer, privacy and accessibility protections.” While asserting their willingness to work with the Republican majority, Senators Patrick Leahy (D-VT), Ron Wyden (R-OR), Al Franken (D-MN) and Cory Booker (D-NJ) warned in a joint statement that the draft bill “would dramatically undermine the FCC’s vital role in protecting consumers and small businesses online by limiting its enforcement and rulemaking authorities.”