Rosenworcel, House Communications GOP Clash on Net Neutrality NPRM

Republican condemnation of the FCC’s actions since it shifted to a Democratic majority in late September -- and Democrats’ defense of the commission’s recent record -- dominated a Thursday House Communications Subcommittee hearing on agency oversight, as expected (see 2311290001). The hearing’s slightly rancorous tone signaled a return to more overtly partisan oversight, in contrast to relatively more bipartisan discussion when FCC commissioners testified in front of the subpanel in June, while the commission was still tied 2-2 (see 2306210076).

House Commerce Committee Chair Cathy McMorris Rodgers of Washington and other Republicans directed their strongest criticisms at the FCC’s 3-2 October decision to open a proceeding aimed at restoring most of its rescinded 2015 net neutrality rules and classifying broadband as a Communications Act Title II service (see 2310190020). The commission’s November adoption of anti-digital discrimination rules (see 2311150040) also drew significant GOP scrutiny. The FCC has “moved aggressively to advance partisan initiatives despite calls” to “continue down a bipartisan path,” said subpanel Chairman Bob Latta of Ohio.

“We must maintain the current light-touch regulatory approach” the FCC adopted when it rescinded its 2015 net neutrality rules, which “has allowed our networks to adapt and thrive,” rather than move forward with FCC Democrats’ proposed “heavy-handed regulatory approach,” Rodgers said. The FCC under former Chairman Tom Wheeler “attempted to impose these same regulations and made false claims that without them, the internet would be ruined,” Latta said.

House Commerce ranking member Frank Pallone of New Jersey led Democrats in touting the net neutrality proceeding. That “rulemaking will correct an unpopular and misguided Trump administration policy change that amounted to a dereliction of the FCC’s nearly 100-year-old duty to oversee our communications networks,” Pallone said. “Since that change, the FCC’s traditional oversight functions have been frustrated when it comes to broadband networks,” which is “limiting its ability to investigate network outages, protect consumers and promote national security.”

The FCC “must act with urgency” now that it has a full five-member complement, including “maintaining the open internet,” said House Communications ranking member Doris Matsui, D-Calif. Rep. Anna Eshoo, D-Calif., noted that “states stepped in” with their net neutrality laws following the FCC’s rescission of its 2015 rules “and California did it in a major way” via its statute (see 2205050041). “Detractors of this policy” should “spend a few minutes examining that leadership,” she said. “It protected the consumers and the people of … the largest state in our country.”

Rosenworcel Responds

FCC Chairwoman Jessica Rosenworcel pushed back when Latta questioned whether “fearmongering” claims that opponents of the commission later rescinding its 2015 decision came true. The U.S. avoided the worst potential effects of rescission because “more than a dozen states,” including California, began “stepping in and developing their own net neutrality laws” after “Congress and the FCC stepped out,” Rosenworcel said. Republican Commissioner Brendan Carr countered that U.S. networks were “able to withstand” increased traffic during the COVID-19 pandemic because the 2015 rules’ rescission made U.S. networks stronger in comparison with more regulated networks in Europe and elsewhere.

Rosenworcel also countered Latta when he probed her invoking national security as a reason to pursue a net neutrality rewrite. “Over and over again, our national security authorities come to us with problems with broadband traffic and ask the FCC to take action, but I have to repeatedly say, ‘No, the last administration took away the FCC’s oversight over broadband,’” she said. Carr believes the national security locus is another instance in which FCC Democrats are “grasping at straws” for reasons to justify revisiting the 2015 rules.

The digital discrimination rules the FCC adopted “will put burdensome requirements on our nation's broadband providers, leading to government bureaucrats micromanaging Americans' internet access,” Rodgers said. Latta added, “Rather than focusing on intentional discrimination against historically marginalized groups, as Congress intended” in the 2021 Infrastructure Investment and Jobs Act, “the Biden administration is once again unilaterally expanding the power of un-elected bureaucrats under the guise of equity.” The rules “go far beyond Congress’ intent,” he added. Rep. August Pfluger, R-Texas, called them an “invasive approach” to the mandate.

“Congress gave us a very broad mandate … to prevent and eliminate digital discrimination” via IIJA, “so we implemented it just as it is written,” Rosenworcel said. “You did not limit it to only ISPs, you didn’t limit it to only some terms and conditions.” Carr said, it’s “very clear to me that the FCC went far beyond” the law’s text and “I agree” with the view that it represents a “regulatory overreach.” He noted “Congress did not include” language in IIJA mandating the FCC adopt a “disparate impact standard” as part of the rulemaking.

Free Press Vice President-Policy Matt Wood criticized Republicans’ treatment of the FCC’s net neutrality and digital discrimination actions during the hearing. “What the GOP comically and falsely calls a ‘Biden broadband takeover’ is actually nothing more than a long-overdue makeover,” he said. A range of the new proceeding’s opponents, including Fixed Gear Strategies’ Nathan Leamer and American Action Forum Director-Technology and Innovation Policy Jeffrey Westling, backed the GOP approach.

ACP, Spectrum Interest

Rep. Yvette Clarke, D-N.Y., said she plans to file legislation to allocate more funding for the FCC’s affordable connectivity program “before Congress concludes its work for the year.” President Joe Biden urged Congress to provide $6 billion in stopgap ACP funding as part of his October domestic spending supplemental request (see 2310250075). “The success of this program is undeniable and with funding expected to run out early next year, I plan to fight hard to make sure Congress provides the commission with the administration's full funding request for the ACP,” Clarke said.

Matsui and others also cited interest in extending ACP's life. “Preserving the ACP will allow us to build upon the progress made in expanding connectivity, rather than falling behind in a mission we cannot afford to lose,” Matsui said. She noted a November letter from 26 states' governors urging Congress to provide the additional money (see 2311140061).

There was more bipartisan agreement on the need for Congress to restore the FCC’s lapsed spectrum auction authority, though there weren’t enthusiastic references to the House Commerce-approved Spectrum Auction Reauthorization Act (HR-3565), which faces continued headwinds (see 2311220063). “The federal government must be a driving force in maintaining a healthy spectrum pipeline,” Matsui said. She later urged lawmakers to “work together on a bipartisan basis” to secure the additional $3.08 billion to fully fund the FCC’s Secure and Trusted Communications Networks Reimbursement Program, something HR-3565 addresses.

Rep. John Joyce, R-Pa., cited hopes the House will soon pass HR-5677, his companion to the Senate-approved 5G Spectrum Authority Licensing Enforcement Act (S-2787). The measure would give the FCC authority for 90 days to issue T-Mobile and other winning bidders the licenses they bought in the 2.5 GHz band auction last year (see 2309220057). Rosenworcel recently endorsed HR-5677/S-2787 (see 2311270071).

Even spectrum discussions occasionally turned testy Thursday. Rodgers and other Republicans took the opportunity to lambast the Biden administration’s recent national spectrum strategy (see 2311130048). “While Congress works to reauthorize spectrum auction authority, no spectrum has been identified to make available for commercial use,” Rodgers said. Added Carr, “I would have had the spectrum plan actually free up more than zero MHz of spectrum.”

Rosenworcel pushed back after Pfluger implied criticism of the FCC’s lack of annual calendar plans for spectrum auctions since she became FCC chairwoman that contrasted with schedules Ajit Pai made when he led the agency. The FCC “no longer has spectrum auction authority, so we can’t actually act and produce an auction plan” as mandated in the 2018 Repack Airwaves Yielding Better Access for Users of Modern Services (Ray Baum's) Act (see 1812100050), Rosenworcel said. “We’ll sit here right now, and I’ll tell you what I’d like to do if you give me auction authority” back. “I have a bunch of bands that are sitting in the closet at the FCC,” including on the AWS-3, 600 MHz, 700 MHz and 800 MHz frequencies, she said.

Rodgers and Rosenworcel agreed on opposing calls for the FCC to refresh the record in docket 14-261 on reclassifying linear streaming services as MVPDs (see 2306230062). “It's fair to assume that” no members of Congress “were contemplating” the “kind of streaming services that we have today” when they passed the 1984 Cable Act and 1992 Cable Act, Rodgers said. Senate Commerce Committee Chair Maria Cantwell of Washington, Communications Subcommittee Chairman Ben Ray Lujan of New Mexico and other Democrats have been urging a refresh of the MVPD record (see 2310180067).

“I think that our duties and authority in this area are constrained by” the cable statutes, “which contemplated a physical facility for the delivery of video communications,” Rosenworcel said. “We are combing over the record and trying to understand adjacent copyright issues to figure out a way forward.” She thinks “fundamentally this is an issue where those who want us to act are going to have to come to Congress, but I acknowledge some of my colleagues may not feel the same way.”