At a hearing conducted Tuesday by the House Communications Subcommittee, a pair of bills proposing to narrow the scope of the FCC’s 2015 Open Internet order emerged as the hot topic of debate, as Democrats on the panel disagreed with Republican lawmakers on the extent to which FCC authority over broadband rates should be curtailed.
Although four pending or draft bills were teed up for discussion during Tuesday’s hearing, two—the No Rate Regulation of Broadband Internet Access Act (H.R. 2666) and the draft Small Business Broadband Deployment Act (SBBDA)— commanded most of the attention. Seizing on previous pronouncements by FCC Chairman Tom Wheeler that the FCC has no interest in regulating broadband rates, H.R. 2666 would codify that commitment by prohibiting FCC regulation of such rates. (As part of its decision in the Open Internet order to reclassify broadband ISPs as Title II telecommunications providers, the FCC forbore from applying to ISPs many statutory and regulatory requirements for pricing Title II services.) The SBBDA, meanwhile, would extend permanently exemptions provided for small ISPs from the enhanced transparency requirements of the Open Internet order.
Explaining that H.R. 2666 “binds future [FCC] chairmen to live by the commitments this administration has made as to how the sweeping authority the FCC granted itself is to be used,” subcommittee chairman Greg Walden (R-OR) called upon his colleagues to “ensure that the specter of rate regulation of broadband is off the table permanently.” As subcommittee vice chairman Bob Latta agreed that passage of H.R. 2666 would “remove uncertainty,” former FCC Commissioner Robert McDowell, a witness at the hearing, suggested that H.R. 2666 be amended to specify that ex post facto rate regulation (such as enforcement actions declaring existing rates to be too high) and ex ante regulation (such as tariffing requirements) would also be prohibited. Rep. Mike Doyle (D-PA) argued, however, that the broadband service sector “is rife with price gouging.” Other Democrats on the panel warned that H.R. 2666 is overly broad and could sweep away protections against anticompetitive interconnection charges and monopoly rates. Ranking subcommittee member Anna Eshoo (D-CA) also cautioned that passage of H.R. 2666 could impact the FCC’s ability to regulate special access and universal service.
Meanwhile, a representative of the Wireless Internet Service Providers Association (WISPA) voiced support for passage of the SBBDA, as she detailed the high costs small ISPs would incur if they were forced to comply with the transparency disclosure requirements of the FCC’s rules. While noting that the SBBDA would also harmonize the FCC’s definition of a small ISP (an ISP with 100,000 or fewer subscribers) with the benchmark adopted by the Small Business Administration (i.e., 500,000 or fewer subscribers), Walden proclaimed that “small businesses deserve the certainty of a permanent exemption.” Nevertheless, as Eshoo charged that the SBBDA would exempt “companies with hundreds of millions in annual revenues,” Public Knowledge senior vice president Harold Feld testified: “we have a long history that, whenever we grant a permanent exemption to a broad class, bad actors move in.”