E&C Democrats Submit Comments on Net Neutrality Plan: Proposal Fundamentally & Profoundly Runs Counter to the Law

Washington, D.C. – Eleven Energy and Commerce Committee Democrats today submitted public comments on the Federal Communications Commission's (FCC) proposal to roll back net neutrality regulations stating that the proposal fundamentally and profoundly run counter to the law. The lawmakers wrote that the FCC's proposal misstates the distinction Congress made in the Telecommunications Act of 1996 between telecommunications services and information services.

The Committee Democrats also wrote that the proposal ignores the most critical issues affecting our country today—priorities such as free speech and democracy, small businesses, jobs and economic development, and privacy. Instead, the Commission narrowly focused on a single ill-conceived measure of broadband investment to the exclusion of all others.

The comment was submitted by Energy and Commerce Ranking Member Frank Pallone, Jr. (D-NJ), Communications and Technology Ranking Member Mike Doyle (D-PA), and Representatives Anna G. Eshoo (D-CA), Diana DeGette (D-CO), Jan Schakowsky (D-IL), Doris Matsui (D-CA), Kathy Castor (D-FL), John Sarbanes (D-MD), Jerry McNerney (D-CA), Peter Welch (D-VT) and Joe Kennedy III (D-MA).

Following, are excerpts from some of the key sections of the 17-page comment:

1996 Telecommunications Act intended to treat services differently & Congress has chosen not to eliminate that distinction

"In the Act, we labeled services that create content as ‘information services,' which we defined as those that offer the capability to generate content among other things. We also created a distinct classification of services that transmit information that we called ‘telecommunications services.' We defined these services as ones that offer telecommunications for a fee directly to the public. We then defined ‘telecommunications' as the transmission of the content between two points of the users' choosing without change.

"We based this distinction on a clear policy goal that remains true today. Americans have fewer options about which networks they buy their subscription services from than they do when it comes to the information they communicate using those networks. Moreover, we were concerned that networks could use their market power to control the information that Americans could communicate online, whether for commercial or political reasons. In contrast, we intended to set strict limitations on the government's reach into the content communicated between Americans. This was not an easy compromise to reach and should not be dismissed easily." (pages 12-13)

"While the technology has changed, the policies to which we agreed have remained firm—the law still directs the FCC to look at the network infrastructure carrying data as distinct from the services that create the data. Using today's technology that means the law directs the FCC to look at ISP services as distinct from those services that ride over the networks.

"The FCC's proposal contravenes our intent—the FCC should tread carefully before interfering with content creation. While some may argue that this distinction should be abandoned because of changes in today's market, that choice is not the FCC's to make. The decision remains squarely with those of us in Congress—and we have repeatedly chosen to leave the law as it is." (pages 13-14)

Actions harm free speech and democracy

"We specifically directed the Commission to put a premium on protecting these [independent] voices. For instance, when we passed the Communications Decency Act (CDA), we wrote that the internet offers ‘a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.' We adopted a policy directing the FCC to ‘maximize user control of what information is received by individuals, families, and schools who use the Internet.' We directed the Commission to ‘preserve the competitive free market that currently exists on the internet" and keep that market "unfettered by federal or state regulation.'

"Our intention was clear: the FCC's priority should be protecting independent voices by making sure that consumers are the ones who choose what content they access online—not the government and not big corporations. Confusingly, the FCC's proposal cites these provisions of the law for the opposite contention. The proposal suggests that these sections of the law show that we intended the FCC to remove consumer protections that allow people to decide for themselves what they see online. That contention is simply wrong and should not be used as the basis for undoing net neutrality. (pages 4-5)

Actions harm small businesses, economic development and jobs

"The Commission's proposal has the potential to rip the internet in half, creating a first class section for those with deep pockets and a lower class version for small businesses. Under this regime, the innovative startups of today and tomorrow may simply disappear because they will lose access to the internet that has allowed them to compete against larger corporations. This loss could slow the entire economy, eliminate existing jobs and take away opportunities for the future.

"When we included the public interest standard in the Communications Act, we required the Commission to account for these kinds of losses. Before taking actions that could harm small businesses and kill jobs, the FCC must balance the damage this policy could inflict on the public." (pages 7-8)

Actions harm people's privacy

"We were disturbed that the Commission's proposal failed to recognize the potential harm it could cause to people's privacy. To fulfill its obligation to act in the best interest of the public, the Commission must first develop a record that allows it to balance the effects of its actions on people's personal information." (page 9)

Claims of network investment is not an accurate measure of the public interest

"The national priority the FCC should consider is not the amount spent on network infrastructure, but instead on how many people the networks reach and the quality of the connections. To measure this national interest, the Commission must also include factors such as actual deployment, relative speeds, and investment and innovation from ancillary business like websites and apps. The proposal impermissibly overlooks all of these factors.

"Regardless of whether the studies cited in the recent proposal actually support the Commission's assertions, this factor alone cannot satisfy the heavy responsibility of determining whether a policy is in the interest of the pubic. If we had intended network investment to be the sole measure by which the FCC determines policy, we would have specifically written that into the law. We did not." (pages 9-10)

Broadband deployment data must be improved before FCC makes decision

"The FCC has recognized the shortcomings in its data and has begun considering a process to improve it. However, we directed the Commission to base its decisions on reliable deployment data. In Section 706 of the Telecommunications Act of 1996 we required the FCC to perform an annual inquiry ‘concerning the availability of advanced telecommunications technology.' And we specifically tied this inquiry directly to the Commission's legal authority to take action. We similarly required the FCC to report on competition among mobile services. We wanted the FCC to base its decisions on sound, un-biased data.

"Before moving forward, the FCC should first correct its data, as we required. The FCC may not simply paper over these flaws by relying on privately-funded third-party analyses." (pages 11-12)

FCC may have inappropriately violated its independence

"Unfortunately, this process has been wrought with indications that the President is actually directing the actions of the Commission. As an initial matter, Chairman Pai met personally with the President in the Oval Office. The Chairman has not been willing to disclose whether the President gave specific direction on what policy directions the FCC should take." (page 14)

The full comment can be found here.