The Washington PostDemocracy Dies in Darkness

The GOP’s plan to legislate net neutrality is here. And Internet activists already hate it.

(AP Photo/Carolyn Kaster)

Congressional Republicans are circulating the draft of a long-awaited, much-rumored bill that would clarify federal regulators' ability to enact strict rules governing broadband providers.

The bill would enshrine into law key principles under net neutrality, the idea that all Web traffic should be treated equally by broadband companies. Specifically, it would prohibit Internet service providers from "speeding up or slowing down … some Internet traffic in relation to other Internet traffic over the consumer’s broadband," according to the text, which is being circulated by the Senate Commerce Committee and the House Energy and Commerce Committee.

In addition to banning what's called "paid prioritization," the draft legislation bans the blocking of Web traffic and requires Internet providers to publicly disclose their network policies.

But crucially, the bill would also restrict the Federal Communication Commission's authority in several ways. Under the legislation, the agency would be expressly prohibited from trying to regulate broadband using the same legal tools it uses to police phone companies — something that President Obama and consumer groups have specifically asked for in the push for net neutrality. The bill would also restrict the FCC's ability to regulate broadband in the future even under its existing authority.

"While prohibiting some forms of harmful discrimination, [the bill] handcuffs the FCC and prevents them from looking at any other kinds of abuses," said Matt Wood, policy director at the advocacy group Free Press.

Free Press and others have called for regulating broadband providers under Title II of the Communications Act, a step that would give the FCC more power over Internet providers. But conservatives argue that such a plan would be a step too far.

"By turning the FCC away from a heavy-handed and messy approach to regulating the Internet," said Sen. John Thune (R-S.D.), chair of the Senate Commerce Committee, "this draft protects both consumers who rely on Internet services and innovators who create jobs."

Rep. Fred Upton, chairman of the House Energy and Commerce Committee, said "Everyone, if they are serious in standing up for consumers, should be able to get behind" the bill.

But Gene Kimmelman, president of the consumer group Public Knowledge, said the bill would threaten other key agency missions, such as protecting consumer privacy and making sure all Americans have adequate access to broadband. The draft text not only prohibits the FCC from using Title II to regulate Internet providers; it also strips the FCC of its existing power over those companies by clarifying a part of the Communications Act called  "Section 706."

Section 706 recognizes the FCC's authority to promote broadband deployment, and a federal court last year upheld that interpretation. But some policy analysts fearful of Section 706's ambiguous language worried that it could enable government overreach. The GOP bill aims to prevent the FCC from ever invoking Section 706. Combining that with the proscription against Title II, said Kimmelman, is a problem.

"It's really tying the hands of the expert agency and eliminating all flexibility to prevent broadband abuses in the future," he said.

Closing off Section 706 would also inhibit the FCC from meeting Obama's goal of preempting state laws that ban cities from building their own alternatives to big Internet providers such as Comcast and Verizon. Two cities have asked the FCC to intervene against those state laws; if the agency agrees next month to help, it would likely rely on Section 706 to justify its preemption.

So while the bill would quickly settle the net neutrality question, it would also clamp down on the FCC's future ability to regulate broadband providers.

Senate Democrats led by Patrick Leahy (Vt.) and Ron Wyden (Ore.) said they opposed the GOP bill's provisions restricting the FCC's authority.

"Unfortunately, the bill as currently drafted would dramatically undermine the FCC’s vital role in protecting consumers," said the lawmakers, who were joined by Sens. Al Franken (D-Minn.) and Cory Booker (D-N.J.). "Further, the Republican bill would severely curtail the FCC’s ability to promote the deployment of broadband service."