Blackburn, Pai, O'Rielly Target Net Neutrality, Title II, Privacy; Deregulatory Push Seen

Congressional and FCC Republicans vowed to roll back communications regulation, starting with the agency's net neutrality and broadband reclassification order. House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., said she expects a net neutrality "legislative solution" early next Congress, and also took aim at recent broadband privacy rules: Lawmakers are going to have an "incredible" 2017, with opportunities to address many issues. "We are gearing up for just a terrific year," said Blackburn, one of several speakers at an Free State Foundation (FSF) event.

Commissioner Ajit Pai also voiced confidence change was coming to the FCC. "I’m optimistic that last month’s election will prove to be an inflection point -- and that during the Trump administration, we will shift from playing defense at the FCC to going on offense," he said (remarks here). Pai said he's confident the broadband reclassification under Title II of the Communications Act would be reversed one way or another. "I’m also optimistic that the FCC will once again respect the limits that Congress has placed on our authority," he said.

Commissioner Michael O'Rielly outlined four broad priorities: undoing harmful policies, clearing regulatory underbrush, carrying out a "pro-growth, pro-innovation agenda," and engaging in process reform. He said there were many "wrongheaded" policies to reverse, including broadband reclassification and privacy rules. "And make no mistake, the list of harmful actions by this Commission is by no means final yet," he said (remarks here), singling out recent "zero rating" letters to AT&T and Verizon (see 1612020044). He made similar remarks at an event Tuesday (see 1612070056).

All three Republicans backed actions to spur broadband deployment in rural areas. They talked of harnessing spectrum and removing regulatory obstacles. O'Rielly and Pai mentioned using the FCC's current telecom biennial review to eliminate regulation (see 1612060072, 1611030042 and 1607270065).

None of the three was willing to answer questions about potential new roles. Blackburn declined to say whether she wanted to be chairwoman of the Communications Subcommittee, quoting a Trace Adkins song: "I'm just proud to be here." She said she does look forward to welcoming a new FCC chief to committee hearings. Pai -- seen as the likely next FCC chairman, at least in an acting capacity -- said he would have no comment on any conversations he may have had with President-elect Donald Trump's transition team. O'Rielly also declined to comment on FCC leadership questions. Afterward, Pai also declined to comment on any FCC issues.

Blackburn said Trump should make the "next appointment" to the FCC. Asked about the Senate's current consideration of Commissioner Jessica Rosenworcel's nomination to another term, Blackburn said she would like to see Trump "put his imprint" on the commission. She worried about an FCC "deadlock" if Chairman Tom Wheeler doesn't resign (a situation that could also happen for a while if Wheeler resigns and Rosenworcel is reconfirmed).

Blackburn said a good "starting point" for "fixing" net neutrality -- which she called 1930s public-utility regulation -- would be the discussion draft offered by Senate Commerce Committee Chairman John Thune, R-S.D., and outgoing House Commerce Committee Chairman Fred Upton, R-Mich. Asked how net neutrality could fit into a broader legislative overhaul, she said, "Let's cross that bridge when we get to it." Incoming House Commerce Committee Chairman Greg Walden, R-Ore., the Trump administration and others deserve some time to sort things out, she said.

Blackburn hammered FCC broadband privacy rules. She said the communications commission exceeded its authority, intruded on traditional FTC jurisdiction, created confusing dual regulation, and lacked technical expertise in creating a "one-sided solution" that targeted ISPs, which she said have less visibility into consumer activity than edge providers. She also criticized its set-top box regulatory efforts. But Blackburn said constituents expect policymakers to protect their privacy through improved industry transparency and consumer choice, as well as their data security, including through encryption. She said her committee would be looking at spectrum, media ownership, ICANN and its recently completed Internet Assigned Numbers Authority transition, and rural broadband deployment. She said access to high-speed infrastructure is a top issue in the "flyover country" between the coasts.

Pai hailed FSF's belief in limited government, rule of law and rigorous economic analysis, and said he believed next year would bring much opportunity for "our shared principles" to be advanced in policy. "On the day that the Title II order was adopted, I said that 'I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future commission. But I do believe that its days are numbered.' Today, I am more confident than ever that this prediction will come true. And I’m hopeful that beginning next year, our general regulatory approach will be a more sober one that is guided by evidence, sound economic analysis, and a good dose of humility," he said. "We can’t simply enact whatever we think is good public policy. We also have to make sure that we have the power to do so. But the commission hasn’t done a very good job of that recently."

His agency should aggressively "remove outdated and unnecessary regulations," Pai said. "The regulatory underbrush at the FCC is thick. We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation. Free State and others have already identified many that should go. And one way the FCC can do this is through the biennial review, which we kicked off in early November. Under Section 11, Congress specifically directed the FCC to repeal unnecessary regulations. We should follow that command." He summarized various proposals for encouraging broadband that he detailed in a September speech on "digital empowerment" (see 1609130061).

Pai also urged "process reform" that brings "openness and transparency" to the regulator. He said commissioners shouldn't be "kept in the dark." The public also needs to be better informed, including by release of "the text of documents we vote on at public meetings" and the establishment of an "FCC dashboard with key performance metrics," he said. The agency currently "provides information selectively to favored insiders," he added. "It must change."

O'Rielly said the Republican takeover arrived "not a moment too soon." He said the current FCC tried to "exert full control over every detail of anything even arguably within the agency’s grasp, while also expanding our reach into every nook and cranny of the vast Internet economy." Agency officials "seem to believe that innovation in the marketplace is driven by disruptive regulation, not disruptive technology. Unfortunately, this urge to micromanage has become pervasive across a number of matters," including broadband reclassification and privacy, he said.

"As we speak, the commission is working on a number of last-minute projects in an attempt to move the goalposts a little more to the left, despite the clear instructions of Congress that we should immediately stop work on any controversial items," said O'Rielly. "The Wireless Bureau is still aggressively pursuing its yearlong zero rating investigation against broadband providers, and has demanded another round of responses from two providers by Dec. 15. While it is still unclear exactly where they are planning to go with this, the contentious nature of the letters that were sent last week seems to hint at one last gift to be left under the tree for net neutrality activists. ... Next year’s commission should consider acting quickly to reverse any damaging policies put into place over the last eight years and in the last few weeks of this administration. It should likewise close out any problematic notices and dockets."

O'Rielly agreed with Pai on process reform and on clearing regulatory underbrush, including through the telecom biennial review and media ownership changes. He lauded Trump's proposal for scrapping two regulations for every one that is imposed, and targeted broadcaster paper correspondence requirements. He also urged action "to define and limit the black hole that is the Team Telecom review process" for foreign-related deals, to remove barriers to wireless infrastructure deployment and next-generation networks, to address various spectrum matters, and to further reform USF to expand communications access.