Thune Considering Legislation to Preempt Title II Broadband Reclassification by FCC

The Telecommunications Law Resource Center is the most comprehensive reference and news platform for communications law, covering broadcasting, cable, broadband, telephony and wireless;...

By Lydia Beyoud

Dec. 9 — Sen. John Thune (R-S.D.), soon to be chairman of the Senate Committee on Commerce, Science and Transportation, said Dec. 9 he is “very interested” in finding a legislative solution for net neutrality that would avoid reclassification of broadband Internet service under Title II.

“We're continuing to discuss that and try and figure out what it might look like if we might try to do something on the legislative side,” as opposed to having the Federal Communications Commission issue stronger regulatory rules under Title II of the Communications Act of 1934, Thune told Bloomberg BNA.

Thune said he and his staff are discussing the issue with the Republican leadership of the House Energy and Commerce Committee.

If they decide to act, the committee would need to introduce legislation “fairly soon next year” before the FCC issues any rules, Thune said. “Because I think they're moving forward but we'd like to have them forbear for a while and give us an opportunity to see what we can get done up here.”

2010 Rules

The FCC is working to re-implement the agency's 2010 Open Internet rules, which a court struck down in January. The proceeding has grown into a strongly partisan debate over whether to reclassify broadband services as common carriers under Title II.

Proponents of the stricter regulatory regime have said such rules would prohibit Internet service providers from entering into paid-prioritization deals with content companies and avoid the establishment of Internet “fast lanes,” which could distort the marketplace and impede innovation.

Title II opponents have said that regime wouldn't actually prevent many of the potential harms net neutrality activists claim, while also imposing additional fees and other burdens on the Internet ecosystem.

Looking to Congress

Former lawmakers and regulators said Dec. 2 that Congress should find a solution to the issue of regulating broadband Internet while avoiding classifying it as a common carrier service. 

Reclassification of broadband Internet service under Title II would derail congressional efforts to overhaul the Telecommunications Act of 1996, resulting in a lost opportunity to update the nation's telecommunications laws, said former Rep. Rick Boucher (D-Va.), who chaired the House Energy and Commerce Subcommittee on Communications, Technology and the Internet.

Congress, rather than the FCC, should resolve what many observers describe as the quagmire of the FCC's Open Internet proceeding (GN Docket No. 14-28), said former FCC Chairman Michael Powell, now president and CEO of the National Cable and Telecommunications Association.

“If you can find a way to have net neutrality cabined in a way that the Democrats claim they want it to be, away from Title II, and there's no more problem because the statute itself is the authority,” then it's possible Congress could find a resolution to the net neutrality problem, Powell said. “I do think there's the makings of a deal there.”

Boucher and Powell spoke at a telecommunications conference in Washington.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Heather Rothman at hrothman@bna.com