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Republicans want a net neutrality law, but only if it stops the FCC from handling it

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A month before the FCC votes on a new net neutrality proposal, lawmakers in the House and Senate are taking the matter into their own hands. Republicans in both houses have introduced a bill that would enshrine net neutrality in law — while taking rule-making power away from the FCC and avoiding a major reclassification of broadband service. It's an attempt to preempt not only agency chair Tom Wheeler, but also President Barack Obama, who made his position on net neutrality clear last year.

The bill offers a compromise between hard-line opponents of net neutrality and the larger changes preferred by President Obama and many activists. It would modify the Communications Act of 1934, adding the basic elements of the FCC's "open internet" plan. That includes these major points:

  • No blocking of lawful services on a network
  • No prohibiting the use of non-harmful devices
  • No traffic throttling — except for "reasonable network management," it would be illegal to slow or degrade any site or service
  • No paid prioritization
  • Transparency requirements for ISPs

Much of the language was lifted directly from the FCC's 2010 Open Internet Order, which was thrown out in court last year. That includes less-than-ideal exceptions for network management and "specialized services" like VoIP, but it settles a major point of contention in Wheeler's proposal by banning paid prioritization, which would have allowed ISPs to offer faster service for companies that paid more. In some ways, it's exactly what net neutrality supporters have been asking for, although advocacy group Public Knowledge has expressed concerns about how strong its protections would be in practice.

But crucially, it adds all of this to Title I of the Communications Act — the part where broadband is classified as an "information service." Title I services are regulated more lightly than Title II "common carriers" like telephone companies, and the last FCC net neutrality framework was struck down because it came too close to making rules that only Title II allows.

ISPs would follow open internet rules, but they'd avoid stricter regulations

Wheeler has kept Title II on the table, and after Obama announced his support for it in late 2014, it's seeming more and more likely that Wheeler could try to reclassify. ISPs, Republicans, and others have complained that Title II would place onerous restrictions on broadband, and this is a clear attempt to stop reclassification. House Energy and Commerce Committee Chair Fred Upton (R-MI) says it's "outlining the appropriate rules of the road," while "leaving twentieth century utility regulation behind."

The bill is also aimed at subverting the FCC's authority. It firmly slams shut the regulatory door that Wheeler was so excited about last year: a part of the Telecommunications Act called Section 706, which allows the FCC to regulate the internet as necessary to promote competition. It adds a simple note to Section 706, saying that the FCC "may not rely on this section as a grant of authority."

Section 706 isn't specific to net neutrality. It's a general way for the FCC to make rules outside Congress' purview, and in fact, it's a section the agency has said it could use to get rid of the anti-municipal broadband laws that Obama denounced earlier this week. It's also vague, and in the case of the Open Internet Order, it's dubious this authority would have stood up to another lawsuit. By agreeing to net neutrality rules, though, Republicans will still be achieving one of their bigger goals: cutting back the FCC's authority.