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If you can’t beat them, beat them up: how US lawmakers are trying to maim the FCC


via Flickr © Kevin Burkett (CC BY-SA 2.0)

  • House passes "No Rate Regulation of Broadband Internet Access Act”
  • Opponents say it's designed to maim the FCC
  • Obama says he'll veto it in any case

The US House of Representatives late last week passed the "No Rate Regulation of Broadband Internet Access Act,” and if you think it reads more like a placard than a law, you’d be right. This Act is a piece of political theatre designed to keep net neutrality fisticuffs in the public eye -  it won’t make it to the statute book because even if it passes through the Senate, President Obama has indicated that he will veto it.

So what’s the point?

It’s part of an ongoing barrage against the FCC which has so far involved summoning its chairman to testify to a series of committees to answer for his temerity in actually protecting net neutrality. And of course there’s the legal challenge - the verdict from which is due to be announced anytime now - which alleges that the FCC acted beyond its authority to declare broadband a ‘common carrier’ service in the first place.

But there was also an ostensible reason for drafting the "No Rate Regulation of Broadband Internet Access Act”, or H.R. 2666. It was to make sure that the FCC stuck to the pledge made by its chairman, Tom Wheeler, not to use the Title 2, common carrier classification to introduce rate regulation and impose price controls, a prospect that had the ISPs in a real lather.

But it soon became clear that there was more to it than that. In banning rate regulation, H.R. 2666 took the opportunity to actually redefine it and thereby to restrict the FCC’s ability to regulate at all, according to Harold Feld, Senior Vice President at Public Knowledge, a leading public interest group campaigning to protect net neutrality.

In his blog Feld says that the “bill does not use the regular definition of “rate regulation.” As the Supreme Court explained last January, “rate regulation” means an agency uses a traditional ratemaking proceeding to set a specific price. H.R. 2666 expands this into new territory by defining “rate regulation” as the FCC using “rulemaking or enforcement authority to establish, declare or review the reasonableness of such rate[s].”

Feld says this formulation is designed, not only to keep the FCC’s nose out of regulating unfair pricing or billing policies, but to make it open to legal challenge if it addressed “zero rating”, the neutrality-busting wheeze that has replaced blocking and throttling as the number one net neutrality threat.

But if the bill won’t go through? Then the Republicans will batter away with another bill with a slightly different angle of attack. And they still hope the courts will, at the very least, nit pick the FCC’s move to classify ISPs as common carriers. Then of course there’s the presidential elections when, the big US ISPs hope, a right wing Republican will be returned to the Oval Office and the end of network neutrality will be in sight.

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