A Free and Open Internet Under Assault in Congress
By Ernesto Falcon
Net Neutrality’s Opponents in Congress Are Determined to Defund, Stall, and Hamstring the FCC
Internet users recently enjoyed a historic victory in the United States Court of Appeals for the District of Columbia Circuit where the Federal Communications Commission’s (FCC) Open Internet Order was upheld as lawful. The court swatted down every legal argument made by the cable and telephone industries opposed to a free and open Internet. But in the last few weeks, Congress has relentlessly tried to defund, stall, and hamstring the FCC—even though four million Americans spoke out in favor of the FCC using its legal authority to protect a free and open Internet.
If You Can’t Beat Them, Defund Them
The House Appropriations Committee has cut the FCC’s budget by $69 million, and its current bill would prohibit the FCC from using federal funds to enforce its Open Internet Order until the cable and telephone industries’ legal challenges are resolved. That’s ironic, because the D.C. Circuit opinion is so favorable to the FCC that the agency will likely defeat any further challenge to its legal authority. In fact, the Supreme Court is probably not going to take up the case because there is no split among the circuit courts. Even the dissenting judge in the D.C. Circuit’s 2-1 decision agreed that the FCC has the legal authority it needs to pass the Open Internet rules. Why would Congress bother placing these conditions on the FCC when the courts have effectively given the agency the go-ahead?
If You Can’t Defund Them, Stall Them (and Cost Consumers a Ton of Money)
One of the central principles of a free and open Internet is your right to connect any device to the network so long as it does not harm the network. We take that idea for granted when connecting computers to the Internet, but the markets for some types of personal devices lag far behind.
Congress tried to bring competition and diversity to the market for pay-TV set-top boxes when it enacted Section 629 of the Telecommunications Act, which ordered the FCC to break up the cable set-top box monopoly. That was 1996.
Twenty years later, after three attempts, the FCC is actually moving forward to carry out that law. But pay-TV companies and their allies in the entertainment industry are pushing hard for the FCC to repeat its past mistakes. Therefore, the cable industry and its allies are taking their case to Congress. Both the House and Senate Appropriations Committees inserted a provision that would require the FCC to produce a “study” on the impacts of breaking up the set-top box monopoly and then wait another six months before actually breaking up the monopoly.
You don’t need to be an economist to know that breaking up a monopoly is usually a good thing for everyone but the monopolists (in this case, cable and satellite companies, who provide 99% of all set-top boxes). Not to mention that the FCC’s process for creating new rules already requires the agency to study the issue and invite thorough public comment and discussion. The FCC’s own rulemaking process is the appropriate way to discuss the implications of a proposed rule. It’s easy to see that piling on additional “studies” is just intended to slow the process, potentially forever.
What makes this provision particularly offensive is that Congress seems oblivious to the cost to ordinary consumers. Our colleagues at Public Knowledge have calculated to the second how much the delay costs consumers. If lawmakers now regret ordering the FCC to end the set-top box monopoly, they could change the Telecommunications Act. Instead, this stall tactic allows them to pretend they favor competition while really protecting the monopolists’ profits.
And If You Can’t Stall Them, Hamstring Them
We’ve raised this issue before: H.R. 2666, the “No Rate Regulation of Broadband Internet Access Act,” is an attempt to hamstring the agency’s ability to enforce net neutrality. Given that the bill faced strong opposition in the House of Representatives (thanks to your willingness to call your House Rep) the bill is unlikely to move forward in the Senate as a standalone package. That means supporters of H.R. 2666 will need to try to squeeze it into a larger must-pass package bill as a last resort. If all the new lines of attack are any indication, we will need to stay vigilant.
Time To Make Your Voice Heard in Congress
We must make it clear that further attempts to move any bill or provisions tucked into other bills that would defund, stall, or hamstring the FCC from preserving a free and open Internet are a non-starter. There are still many members of Congress who are undecided on this issue. Take a moment to make sure your Senators and your Representative know where you stand. Opponents will continue to seek out ways to undo our victories, and the Internet user community must respond firmly.
June 23, 2016 at 11:21PM
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