House Energy and Commerce Subcommittee Approves Resolution Opposing Net Neutrality Rule

On March 9, the House Energy and Commerce Subcommittee on Communications and Technology held a hearing and markup on H.J. Res 37, which would prohibit the Federal Communications Commission’s (FCC) net neutrality rule adopted by the agency on December 21, 2010 from having any force or effect. The resolution was approved along a party-line vote of 15-8, and will now go before the full committee for a vote.

Witnesses at the highly anticipated hearing included Tom DeReggi, President, RapidDSL & Wireless; Shane Mitchell Greenstein, PhD,The Elinor and Wendell Hobbs Professor, Kellogg School of Management, Northwestern University; Anna-Maria Kovacs, PhD, Strategic Choices; James Cicconi, Senior Executive Vice President-External and Legislative Affairs, AT&T; Robin Chase, CEO, Buzzcar; and S. Derek Turner, Research Director, Free Press. Free Press coordinates the Coalition, of which AALL is a member.

During the hearing, a number of themes arose: whether or not the FCC’s rules would stifle innovation and competition; whether the FCC was attempting to regulate the Internet; and whether the new rules would increase market uncertainty.

In response to the first theme, Robin Chase, founder and former CEO of the popular car-sharing service Zipcar, said, “Without an open Internet, a company like Zipcar simply would not exist.” She went on to argue that without the FCC’s net neutrality rules, broadband Internet companies have incentives to erect barriers to Internet access, “which would dramatically harm our nation’s ability to innovate and remain competitive in a world marketplace.”

In response to whether the FCC is trying to regulate the Internet, Free Press’s S. Derek Turner pointed to already-existing laws that function to preserve non-discriminatory networks, including the Telecommunications Act of 1996 (P.L. 104-104). He also noted that former FCC Chairman Michael Powell first articulated the “four Internet freedoms” in 2004. These principles served as the basis for the open Internet provisions in the Communications Opportunity, Promotion, and Enhancement Act of 2006 (H.R. 5252), which the House passed during the 109th Congress.

Finally, in regard to whether the FCC’s rules create market uncertainty, James Cicconi said that AT&T believes that the FCC “landed on middle ground” with their rules, and if interpreted narrowly, they “could be good.”

In addition, in response to written questions sent to the National Cable and Telecommunications Association before the hearing, President and CEO Kyle McSlarrow said, “The plain reading of the Order, coupled with some regulatory humility, should [therefore] provide greater certainty than the status quo.”

AALL opposes H.J. Res 37. While we have expressed concerns about the possibility of tiered pricing (also known as pay-for-priority) under the FCC’s rule, as well as the lack of adequate protections for wireless broadband, we are pleased that the FCC has taken positive steps toward preserving net neutrality.

For more background information and the status of net neutrality in the 112th Congress, please see AALL’s Issue Brief, updated by Yale Law librarian Ryan Harrington.

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