By a partisan vote of 15-11, members of the House Communications & Technology Subcommittee approved legislation last Thursday that would limit the effects of the FCC’s 2015 Open Internet order by barring FCC regulation of broadband Internet access services (“BIAS”) rates “without regard to any other provision of law.” As part of last year’s Open Internet order, the FCC reclassified BIAS as a Title II telecommunications service in a move to establish the legal foundation that the D.C. Circuit Court decreed was missing in previous FCC efforts to enact net neutrality rules. Because Title II classification would subject BIAS providers to many of the regulations that apply to common carriers, however, the FCC decided to use its forbearance authority to refrain from imposing pricing and other restrictions on fixed and wireless ISPs that apply to wireline phone networks. Notwithstanding FCC Chairman Tom Wheeler’s pledge of forbearance, Republicans on Capitol Hill have voiced concerns of backtracking by future FCC chairmen, which could jeopardize the freedom of BIAS providers to set rates, terms and conditions for broadband services. The No Rate Regulation of Broadband Internet Access Act (H.R. 2666) introduced by Rep. Adam Kinzinger (R-IL) thus seeks to mitigate that risk.
Although both political parties agree that the FCC should not regulate broadband access rates, subcommittee Democrats believe the bill as currently written is too broad and would threaten the ability of the FCC to protect consumers against unfair billing practices. Observers also confirm disagreement among subcommittee members on how “rate regulation” should be defined. In adopting H.R. 2666, the subcommittee majority defeated two Democrat-sponsored amendments that would have limited the scope of the bill. The first amendment, offered by ranking subcommittee member Anna Eshoo (D-CA), would have specified that the FCC is prohibited from reversing its decision in the Open Internet order to forbear from applying Sections 201 through 205 of the 1934 Communications Act to BIAS providers. (Among other things, these sections require common carriers to set “just and reasonable rates” for telecommunications services and authorize the FCC to set rates if it determines that a tariff violates the Act.) A second amendment, offered by Rep. Doris Matsui (D-CA), would have stated that the FCC authority over BIAS providers is not affected with respect to discriminatory practices, unfair billing, paid prioritization, and universal service.