Rep. Anna Eshoo is urging federal regulators to oversee Internet providers using Title II of the Communications Act — a move that would give the Federal Communications Commission more latitude to prevent the sort of traffic discrimination net neutrality advocates say would hurt the open Internet.
In a letter to the FCC this week, the California Democrat said the agency could selectively apply only those parts of the law that deal with reasonable rates and unjust discrimination — what are known as Sections 201 and 202. The rest of the law, she said, could be waived under a process known as "forbearance." (My colleague Nancy Scola has a good overview of what that means.)
"It is true that some of these laws do apply only to telephone services," said Eshoo, referring to Title II's historical role in regulating phone companies like AT&T. "But others are the source of timeless principles that can and do apply to all two-way telecom services, including broadband."
Eshoo's proposal tracks closely with one by her colleague, Rep. Zoe Lofgren (D-Calif.). In an earlier letter to the FCC, Lofgren also called for a mix of Title II and forbearance — while leaning on another part of the law that could help the FCC make a stronger case for forbearance. In striking down much of the FCC's original net neutrality rules this year, a federal court granted the agency a little more authority under what's called Section 706.
Section 706, found under Title I of the FCC's congressional charter, is how the agency could regulate broadband under new net neutrality rules. Some advocates have been pushing for the FCC to rely primarily on its Section 706 authority to draft the new regulations, but consumer groups argue that won't be enough.
A third proposal by another California Democrat, Rep. Henry Waxman , also relies on Title II, but advances an alternative that waives the very provisions of the law that Eshoo's letter says are the most important — the language against "unjust discrimination." This may sound counterintuitive, but Waxman appears to agree with industry officials' arguments that the phrase "unjust discrimination" actually could still allow Internet fast lanes — if broadband providers can claim that the discrimination is a "just" and reasonable practice.
"Indeed, section 201(b) expressly permits the creation of 'different classes of communications' with different charges so long as they are deemed 'just and reasonable' by the Commission," Waxman wrote in a letter to the agency, adding that the FCC has already "permitted tiered pricing structures based on volume and term discounts, different levels of quality of service" and other factors that could set a precedent for Internet fast lanes.
So, Waxman is proposing regulating broadband under Title II, but waiving Sections 201 and 202, along with much of the rest of Title II. But why does he even bother with Title II in the first place if he throws so much of it out?
To understand, we have to go back to this year's court decision. The D.C. Circuit said the FCC's old net neutrality rules were invalid because they imposed rules on Internet providers that could only be applied to "common carriers" regulated under Title II (remember that Internet providers are currently regulated under Title I). The wall between Title I services and Title II services is pretty strong, but Waxman's idea would knock down that wall for broadband providers, technically putting them under Title II. Then, rather than actually regulating the Internet providers using Title II requirements, the FCC would draw up new requirements based on Section 706.
That's a lot to digest. But we now have three House Democrats all promoting variations on the same idea: Use the most well-worn part of the FCC's authority to deal with a relatively novel problem.