Pai Briefs Senate GOP on Net Neutrality Proposal; Eshoo, Markey Blast Draft Order

Debate over the FCC's impending vote to rescind 2015 net neutrality rules returned to Capitol Hill Wednesday. FCC Chairman Ajit Pai briefed the Senate Republican Caucus on the details of his draft order. Supporters of the 2015 rules -- Sen. Ed Markey, D-Mass., and Rep. Anna Eshoo, D-Calif. -- joined former FCC Chairman Tom Wheeler and former General Counsel Jonathan Sallet on a conference call with reporters to criticize Pai's plan. Lawmakers' interest ramped up ahead of commissioners' planned Dec. 14 vote, with Commissioner Jessica Rosenworcel and other Democrats calling for delay (see 1712040046 and 1712050057).

Pai's lunchtime briefing with Senate Republicans was a “robust, freewheeling” discussion in which he was primarily “walking through the proposal,” though a “cats and dogs” mixture of other issues came up, including media ownership, Senate Commerce Committee Chairman John Thune, R-S.D., told reporters. Pai plans to hold a similar briefing Thursday with House Republicans and previously met with the Senate Republican Policy Committee, congressional aides told us. Pai's office didn't comment.

Pai said the FCC needs to “move ahead” with the rescission order “and not delay,” said Sen. Pat Roberts, R-Kan. No Republican senators repeated Democrats' requests for a delay, Thune said. Pai in fact "seemed to be very supported" by GOP senators, said Sen. Bob Corker, R-Tenn.

“I expressed my support” for the proposal, said Senate Homeland Security Committee Chairman Ron Johnson, R-Wis.: “He has the courage to continue” pursuing it “in the face of just reprehensible tactics” from supporters of the 2015 rules, including “attacking his wife and family” (see 1711270042). “There's been a lot of hysteria,” said Senate Communications Subcommittee Chairman Roger Wicker, R-Miss.: “The personal abuse” of Pai “has just been outrageous” and “completely over-the-top” in a way that “speaks to the supercharged climate.”

Pai “is doing an excellent job that will promote competition and internet freedom, and I think that he's on the right track,” Wicker told reporters. Pai has “been really open with what he wants to do with net neutrality,” said Sen. Deb Fisher, R-Neb. There was “a lot of interest” in Pai's plans, even among senators who don't focus on telecom and tech issues, Corker said: “He did a very good job of answering the questions that were asked."

Eshoo, Markey

Eshoo and Markey remain opposed to bids by congressional Republicans to reach a deal on compromise net neutrality legislation, a position many telecom-focused Democrats share (see 1707130063, 1708070068, 1708300050 and 1711270054). “We are at the point of litigation, not legislation,” Markey said: “I plan to stand side by side” with advocates “who plan to challenge the FCC in court” over the order once it appears in the Federal Register. Markey said he and Eshoo plan to lead a congressional amicus brief in support of the impending legal challenge, just as they did in support of the 2015 rules.

Republicans' calls for Congress to act on net neutrality amid impending FCC rescission are a “ruse” given the GOP's record of opposing the essential elements of net neutrality even as they claim to favor the concept, Eshoo said. “They don't believe in net neutrality.” Calls to require edge providers and ISPs to abide by the same net neutrality rules would ultimately “lower the standard” that applies to the ISPs because the two sets of companies are under different agencies' jurisdiction, Markey said. “The edge companies are overseen by the FTC, and that's fine.”

"What we’re talking about here is the Trump FCC, in cooperation with the Republican Congress, taking away existing consumer protections at the request of the industry,” Wheeler said. “This is a classic example of the regulators being captured by those they are supposed to oversee.”

Eshoo and Markey blasted Pai and other Republicans portraying Google and other edge providers as a bigger threat to net neutrality than the ISPs (see 1711280024). Eshoo called Pai's recent comments “diversionary” and criticized media for publicizing them, saying it's “more interesting” to talk about the edge providers' actions than to “scrutinize” the draft. Pai again criticized edge providers in an opinion piece in The Washington Times. Twitter's temporary removal of a video announcing the Senate bid of House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., and YouTube's restrictions on content from a conservative commentator are evidence “large Silicon Valley platforms today pose a far greater threat to a free and open internet than do” ISPs, he said.

Markey and Sallet believe there's a strong chance federal courts ultimately will strike down the pending FCC order. “It's a very vulnerable decision,” Markey said. “We have a very good chance of prevailing in court.” The draft “is highly vulnerable to reversal as a matter of law, as a matter of policy, as a matter of fact,” Sallet said: “I do not believe a court of appeals will uphold” the order in the face of a legal challenge, in part because it appears to abrogate the FCC's congressionally mandated responsibilities.

Net Neutrality Notebook

The Internet Association asked the FCC to delay or reject action to scrap net neutrality regulation. "The draft 'Restoring Internet Freedom Order' under consideration by the FCC undoes decades of bipartisan agreement on net neutrality principles and ends net neutrality as we know it," said an IA letter Wednesday in docket 17-108. "This draft Order ignores the wishes of tens of millions of Americans who, like us, have voiced their support for the 2015 Open Internet Order. IA and its members will continue our fight to preserve the 2015 Order and its strong, enforceable net neutrality protections." Spotify, an IA member, tweeted it "strongly" opposes the FCC proposal, which "will harm music fans and the artists they love."

AT&T played down concerns about internet interconnection and paid prioritization, which the FCC draft would free from commission regulation. "The record in the proceeding shows that edge providers have many choices for the delivery of traffic to ISP networks, that the 'interconnection' marketplace is functioning efficiently, and that no problems have arisen warranting a regulatory solution," said an AT&T filing on meetings with FCC General Counsel Thomas Johnson and aides, Wireline Bureau Chief Kris Monteith and aides, and officials from the Wireless Bureau and Office of Strategic and Planning. "There have been no actual examples of paid prioritization on the public Internet" and "if and when paid prioritization ever occurs it is likely to be beneficial for consumers and not harmful to them."

Wireless ISP Association officials met with Pai and staff to make clear their support for the draft net neutrality order. It "will eliminate some regulatory uncertainty, reduce unnecessary compliance burdens and help small companies and entrepreneurs to attract additional private capital for bridging the digital divide in rural America,” WISPA said in docket 17-108. “Proposed changes to the transparency rules are appropriate and balanced, especially for small providers that comprise WISPA’s membership.”

The American Cable Association's chief sees irony in Google blocking access to YouTube on Amazon’s Echo Show and FireTV because Amazon won't carry Google's Chromecast and Google Home (see 1712050057). Google defended the move. Reacting to a report on the blocking, ACA's Matt Polka noted "the #TitleII#NetNeutrality crowd ... wants heavy regulation on #broadband#ISPs because of the THREAT that ISPs could block or throttle." His tweet continued that such pro-Title II Communications Act advocates "say NOTHING about actual blocking and throttling by the @Google-Machine and other #EdgeProviders! Can’t make this stuff up, Folks!" Polka's tweet was retweeted by Nathan Leamer, policy adviser to FCC Chairman Ajit Pai. Polka emailed us he's not "suggesting there should be ANY regulation either, because Congress would have to provide the authority." It’s "incredibly ironic" backers of "heavy-handed regulations on ISPs for the THREAT of what ISPs MIGHT do say NOTHING when Google, Amazon, Twitter, Facebook, etc., ACTUALLY and IN FACT block, discriminate, throttle and give themselves and their networks preferential treatment," the ACA CEO emailed Wednesday. "It’s not intellectually consistent for those who say they want the net to be NEUTRAL." The Internet Association didn't comment.

A Google representative said it has "been trying to reach agreement with Amazon to give consumers access to each other's products and services. But Amazon doesn't carry" some Google products, doesn't make Prime Video available for Google Cast users and last month "stopped selling some of Nest's latest products. We hope we can reach an agreement to resolve these issues soon.”

National Religious Broadcasters is starting an "initiative" to combat what it says is a growing problem of Silicon Valley "major players" suppressing viewpoints "that run counter to their preferred ideologies," NRB announced Wednesday. The effort will "challenge Silicon Valley to uniformly practice its professed commitment to free speech, and explore possible public policy options that may exist to address the loss of internet freedom,” said CEO Jerry Johnson. The initiative will be launched with an address Thursday 9 a.m. at the National Press Club by Sen. Ted Cruz, R-Texas, and a panel that will include former FCC Commissioner Robert McDowell.

Free Press said net neutrality activists will protest outside the FCC Chairman's Dinner Thursday against Pai's "plan to dismantle" open internet protections. “Killing the open Internet is no joke, and people will be loudly protesting while Ajit Pai yucks it up with industry lobbyists,” said Free Press Action Fund CEO Craig Aaron. “The outcry from across the political spectrum has been deafening. Pai’s effort to ignore the overwhelming public support for Net Neutrality only isolates him further from the people he’s supposed to serve.” Free Press said the action is part of a "day of protest where thousands of people will protest outside more than 600 Verizon stores in all 50 states plus the District of Columbia," and outside "nearly 20 congressional in-district offices."