Congressional Republicans on Wednesday warned that net neutrality regulations expected to be approved by the Federal Communications Commission will cause years of legal uncertainty for the Internet and that the GOP’s more restrained legislation on the contentious issue was the best way to address the issue.
“What the FCC is most likely going to vote on tomorrow is net nonsense,” said Rep. Joe Barton (R-Texas). “It’s not going to work. It is going to be tested in court, and it’s going to fail in court.”
But some experts testifying at a House Energy and Commerce subcommittee hearing Wednesday said it probably would be at least three years before federal judges ruled on telecommunications companies' promised challenges to the regulations.
That lengthy period could harm investment in expanding broadband networks and put net neutrality protections at risk because the FCC could be controlled by Republicans after the 2016 election.
“I’m concerned that if Congress does not act, all protection for network neutrality is at risk of being lost,” said Rick Boucher, a former Democratic congressman from Virginia who now chairs a telecom industry trade group called the Internet Industry Alliance.
FCC Chairman Tom Wheeler has proposed tough rules for online traffic, including prohibiting broadband providers from charging websites for faster delivery of their content, that depend on classifying broadband Internet service as a more highly regulated service under telecommunications law.
The move would put broadband in the same utility-like legal category as conventional phone companies, reversing an FCC decision in 2002 classifying it as a more lightly regulated information service.
Wheeler and supporters of his plan said the move would provide the best strategy to ensure that the rules are not tossed out in court.
Twice before, FCC net neutrality rules have been overturned after industry lawsuits. The most recent ruling, in January 2014, said the FCC overstepped its authority by trying to treat Internet service providers as more highly regulated utilities even though the agency hadn't classified them that way.
With the Democratic-controlled FCC set to approve Wheeler’s proposal on a party line 3-2 vote, Republicans said their proposed legislation was a better solution that would ensure basic net neutrality protections but avoid the risks of more expansive agency authority.
“A legislative answer to the net neutrality question will finally put to rest years of litigation and uncertainty,” said Rep. Fred Upton (R-Mich.).
Upton, Rep. Greg Walden (R-Ore.) and Senate Commerce Committee Chairman John Thune (R-S.D.) have introduced legislation that would prohibit the practices Wheeler has targeted, including paid prioritization of content, but without giving the FCC the broader authority over Internet service providers contained in his proposal.
The legislation would clarify the FCC’s authority and avoid legal challenges asserting the agency is overstepping its bounds.
The bill is a major concession by Republicans, who for years resisted calls for net neutrality rules because they said they were not needed.
But Democrats have dismissed the legislation, saying it would limit the FCC’s ability to police the Internet for abuses, and have described Wheeler’s plan as the best approach.
“I really don’t think we should be deciding what to do here based on who we think is going to sue who,” said Rep. Frank Pallone (D-N.J.), who noted Republicans traditionally have wanted to limit the ability of people to file lawsuits.
“The Republicans appear to be more litigious these days than our side of the aisle,” he said, pointing to recent GOP legal challenges of President Obama’s policies.
Rep. Anna Eshoo (D-Atherton), said the Republican net neutrality bill has “a distance to go” before it can attract Democratic support.
She and other Democrats said it was time for the FCC to act.
“The country has waited long enough,” said Rep. Yvette Clark (D-N.Y.).
The hearing gave lawmakers one last chance to weigh in on the contentious net neutrality issue before the FCC vote.
A second hearing on the topic by the House Oversight and Government Reform Committee, which also was scheduled for Wednesday, was postponed because Wheeler declined to appear.
Rep. Jason Chaffetz, (R-Utah), chairman of the Oversight committee, had asked Wheeler to testify about the relationship between the FCC and the White House.
"As Chairman Wheeler pushes forward with plans to regulate the Internet, he still refuses to directly answer growing concerns about how the rules were developed, how they are structured and how they will stand up to judicial scrutiny," Chaffetz and Upton said in a statement Wednesday.
"After hearing from over 4 million Americans on such an important topic to our economic and cultural future, it's striking that when Congress seeks transparency, Chairman Wheeler opts against it," the lawmakers said.
The FCC said the majority of the 4 million public comments received by the agency urged it to take the tough steps Wheeler is proposing.
In November, President Obama publicly urged the FCC to take that approach. An initial, less restrictive proposal last spring from Wheeler, a Democrat appointed by Obama, could have allowed broadband providers to charge websites for faster content delivery. Wheeler's latest proposal closely tracks Obama's request.
The Oversight committee and a Senate panel are investigating whether Obama administration officials improperly influenced Wheeler's proposal. The FCC is an independent agency.
An FCC spokeswoman did not respond to a request for comment on Wheeler's decision not to appear at Wednesday's Oversight committee hearing.
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