Having tried and seemingly failed to steer the FCC away from enacting new net neutrality rules under so-called Title II legislation, US telcos have turned to Congress for relief.
The legislation, put forward by Senator John Thune and Representative Fred Upton - both Republicans - aims to amend the 1934 legislation that the FCC looks likely to apply to broadband access in order to tackle the issues of most concern: data throttling, content blocking, and paid prioritization. The bill will be accompanied by hearings on the Hill tomorrow.
The text of the bill appears to provide a compromise between the loose section 706 that telcos have been arguing for, and a "forebeared" Title II classification that would provide the government with significant powers over cable providers. The bill does however specifically limit the FCC authority and, based on previous situations, has likely been written by lawyers from the cable companies themselves.
The authors of the bill wrote an op-ed for Reuters arguing that "as a legislative body, Congress has far more flexibility than the commission to narrowly tailor rules appropriate for today’s digital ecosystem… Congress can ensure the continued growth of our digital economy while preventing harmful government overreach."
Recognizing that the bill has little or no change of passing into law before the scheduled 26 February decision by the FCC, McDowell's op-ed today argues: "While Republicans and Democrats try to work out a deal, FCC Chairman Tom Wheeler should hit the pause button on next month’s vote and let the elected representatives of the American people try to find common ground." He makes the same point repeatedly in the article, highlighting the fact that without the FCC holding off from its vote, much of the effort in Washington will become moot.
McDowell also argues that the FCC's proposed plan - which no one outside the independent body has yet to see - would not stand up to legal challenge. "Trying to refrain, or 'forbear,' from applying most of Title II’s 1,000 heavy-handed requirements while selecting only a few (as proposed by Chairman Wheeler and the White House) will make an FCC order impossible to defend in court because picking and choosing between who gets regulated and who doesn’t will look arbitrary and politically driven to appellate judges," he argues.
The FCC's legal defence grew stronger last week however when Sprint broke ranks with the industry and said that it would welcome a forebeared version of the Title II legislation.
Cable companies and telcos are huge political contributors to Congress. AT&T and Comcast individually spent just under $8m in political contributions last year; the National Cable and Telecommunications Association spent $6.6m; Verizon, $6.3m.
Likewise with lobbying. The cable industry spent more than any other industry except the healthcare industry on lobbying last year. Comcast spent $12m; AT&T, $11m; and Verizon, $10m.