Sen. Patrick Leahy (D-Vt.) and Rep. Doris Matsui (D-Calif.) introduced legislation to require that the FCC ban paid prioritization agreements between Internet providers and content companies, even though the bill will have trouble getting very far in the Republican-controlled House.
But that may not be the point. Democrats are increasingly putting pressure on the FCC to adopt rigorous net neutrality rules, after the backlash to FCC chairman Tom Wheeler's initial proposal that would limit paid prioritization only to pacts that were "commercially reasonable." Wheeler has since added stronger language to his proposal, and the agency also is seeking public comment on whether to reclassify the Internet as a telecommunications service, a move that would give the FCC a greater degree of oversight.
"Americans are speaking loud and clear -- they want an Internet that is a platform for free expression and innovation, where the best ideas and services can reach consumers based on merit rather than based on a financial relationship with a broadband provider," Leahy said in a statement.
Republicans in the House have been skeptical of the FCC approach, and Rep. Bob Latta (R-Ohio) introduced legislation last month prohibiting the agency from reclassifying the Internet as a telecommunications service.
The Leahy-Matsui legislation does not call for the FCC to take such a step, but would require the agency to find a way to prevent paid prioritization. Net neutrality advocates say that otherwise, the Internet risks becoming a "pay-for-play" system that will "divide our Internet into tiers based on who has the deepest pockets," as Matsui said in a statement.
Their bill is co-sponsored by Sen. Al Franken (D-Minn.), Rep. Anna Eshoo (D-Calif.) and Rep. Henry Waxman (D-Calif.).
Internet providers have warned that reclassifying broadband would have negative consequences for the industry, and they also have raised questions about whether paid prioritization, or Internet "fast lanes," are even a real threat. In an interview last week with C-SPAN's "The Communications," Michael Powell, the president and CEO of the National Cable & Telecommunications Assn., said he didn't think that Internet providers were even contemplating fast lanes.
Short of reclassifying the Internet, Wheeler's challenge is to come up with rules that could survive legal scrutiny, as the most significant aspects of the FCC's previous approach were overturned earlier this year by a D.C. federal appellate court. The Leahy-Matsui bill would not give the FCC extra authority, but it could bolster the case for Wheeler to take a a more rigorous approach that may very well face another challenge in court.
The bill did earn praise from the Writers Guild of America West, which said that "this significant piece of legislation recognizes the Internet must remain free of fast lanes benefitting only large corporations, to the detriment of consumers."
The NCTA also issued a statement on the legislation, saying that cable companies "do not engage in paid prioritization and have every incentive to ensure that all consumers enjoy fast and robust Internet services. We are confident that Chairman Wheeler can restore effective rules under the path that the court suggested, and we will work with all parties to preserve consumer protections enforced by the FCC and Federal Trade Commission."
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