The Republican crusade to sabotage federal net neutrality protections took a significant step forward on Thursday when a key House subcommittee approved a bill that could severely limit the Federal Communications Commission's ability to police the nation's largest cable and phone companies.
Under the guise of prohibiting the FCC from regulating broadband internet prices, the legislation could ultimately kneecap the FCC's authority over a variety of potentially abusive industry practices, according to open internet advocates.
The bill, innocuously titled the "No Rate Regulation of Broadband Internet Access Act," is just the latest effort in a multi-pronged Republican campaign to undermine the FCC's ability to protect net neutrality, the principle that all content on the internet should be equally accessible.
The text of the bill, which was introduced by Rep. Adam Kinzinger, an Illinois Republican who has received tens of thousands of dollars in campaign funds from Comcast, AT&T and the National Cable & Telecommunications Association, according to the Center for Responsive Politics, is simple enough:
"Notwithstanding any other provision of law, the Federal Communications Commission may not regulate the rates charged for broadband internet access service."
But in its landmark 2015 Open Internet order, the FCC already pledged to refrain from—or forebear—using its rate regulation authority. The truth is that the FCC has shown little interest in regulating broadband internet rates, which helps explain why your monthly internet bill is so expensive.
Open internet advocates say that Kinzinger's bill, which must be approved by the full Energy and Commerce committee before moving to the House floor, is actually a Trojan Horse that could threaten the FCC's authority over a variety of abusive industry practices, potentially crippling the agency's ability to protect net neutrality.
"Representative Kinzinger's legislation claims to accomplish one thing but actually does something else," Matt Wood, policy director at DC-based advocacy group Free Press Action Fund, said in a statement. "In reality, this bill would prevent the FCC from reviewing entire categories of unfair practices, monopoly abuses, double-charging schemes and threats to net neutrality."
Here's why. If Kinzinger's bill becomes a law, broadband companies could claim that any FCC regulatory action they don't like amounts to rate regulation. In other words, by applying an expansive interpretation to the language "regulate the rates," broadband companies could argue that the bill prevents the FCC from policing a variety of industry business practices that relate to pricing—which is to say, just about all of them.
This interpretation could jeopardize the FCC's ability to "investigate all sorts of tactics the ISPs use to strong-arm competitors and price-gouge consumers: data caps, zero-rating, interconnection disputes, below-the-line and hidden fees, price hiking, and many other kinds of business practices service providers like to impose on their subscribers," according to Kate Forscey, associate counsel for government affairs at DC-based advocacy group Public Knowledge.
This concern is not purely theoretical. For example, during a recent House appearance, former FCC Commissioner Robert McDowell, a longtime critic of net neutrality rules, testified that the FCC "will be reviewing practices such as usage-based pricing and zero-rating of broadband uses, which have a direct effect on the rates that consumers pay for broadband internet access service."
In other words, McDowell directly argued that practices like usage-based pricing (sometimes referred to as "data caps") and zero-rating (exemptions from monthly data limits), which many open internet advocates say undermine net neutrality, have a direct effect on broadband rates. It's no stretch, therefore, to envision a scenario where net neutrality opponents could interpret Kinzinger's legislation as prohibiting the FCC's ability to police data cap and zero-rating abuses, among other industry practices.
Rep. Anna Eshoo, the California Democrat and longtime net neutrality champion who serves as ranking member of the Subcommittee on Communications and Technology, warned during a hearing this week that Kinzinger's bill has the potential to "eviscerate the FCC's authority to protect consumers against truth in billing practices and discriminatory data caps...to address rate-related issues in merger reviews; to ensure enforcement against paid prioritization; and other essential consumer protections."
In an attempt to limit this outcome, Eshoo tried to amend the bill to make clear that the legislation does not prevent the FCC from using its authority to police and prevent abusive data caps, zero-rating, and other consumer-unfriendly industry practices that undermine net neutrality.
The Republican majority on the subcommittee torpedoed Eshoo's amendment.