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New Net Neutrality Challenge in the House

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While we await the D.C. Circuit Court of Appeals’ decision on net neutrality after hearing oral arguments last December, House Republicans have taken action to halt the FCC’s authority to impose parts of the rules. The House passed the “No Rate Regulation of Broadband Internet Access Act” (H.R. 2666) which prohibits the FCC from doing exactly what the title describes.

The bill means to enforce via law FCC Chairman Wheeler’s pledge that the agency would not use its 2015 Open Internet Order to regulate Internet Service Provider’s (ISP) rates. Passing a bill into law would codify this pledge for future administrations. That Order did not, however, define “rate regulation.” This lack of definition came into question at a February markup of the bill in the Energy and Commerce Communications and Technology subcommittee. Without definition, there would be no way to tell if the FCC was acting within its authority when addressing ISPs. H.R. 2666 defines “rate regulation,” but broadly: “the use of rulemaking or authority to establish, declare, or review the reasonableness of the amount charged by an ISP for delivering Internet service.”

Wheeler has expressed concern that the bill would actually hinder the agency from enforcing other net neutrality rules such as those banning ISPs from blocking or throttling lawful content. Any FCC actions to enforce these bans could be misconstrued as rate regulation. The bill states directly that it does not affect the FCC’s authority to ban paid prioritization (also called internet “fast lanes”). President Obama has threatened to veto the bill should it also pass the Senate. In an official statement issued earlier this month, he states that the bill is “overly broad” and would “restrict the FCC’s ability to take enforcement actions to protect consumers on issues where the FCC has received numerous consumer complaints.”