Henry Waxman Has a Plan to Save Net Neutrality

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Rep. Henry Waxman is about to retire, but before he does, he'd like to save the future of the Internet.

Waxman, the top Democrat on the House Energy and Commerce Committee, outlined a legal strategy Friday that he thinks will allow the Federal Communications Commission to enact strong net-neutrality regulations while mostly avoiding a political backlash.

Waxman's proposal partially relies on a controversial move to give the FCC sweeping new powers over Internet access. But unlike other liberals on Capitol Hill, including Democratic leader Nancy Pelosi, Waxman would use a "hybrid" approach aimed at easing the fears of business groups.

In a letter to FCC Chairman Tom Wheeler, Waxman said the FCC should reclassify broadband Internet as a "telecommunications service" under Title II of the Communications Act. The move is necessary, the California Democrat said, to put the new regulations on firm legal ground. A federal court already threw out the FCC's first attempt at net-neutrality regulations earlier this year.

Republicans and Internet providers are fiercely opposed to Title II, warning that it would essentially turn the Internet into a public utility and would strangle economic growth.

To address their concerns, Waxman's proposal would primarily use a separate legal provision to enact the new regulations.

The plan would use Section 706 of the Telecommunications Act (the same provision the FCC used for its 2010 regulations) to bar Internet providers from blocking websites, throttling traffic, or creating special fast lanes for websites that pay more.

Waxman would waive all of the controversial sections of Title II, such as price controls and requirements to provide universal access.

By invoking both provisions at once, the FCC would be using a light-touch approach that could still hold up in court, Waxman said.

"This approach would provide the bright-line protections that advocates of Internet openness are seeking," Waxman wrote in the letter. "At the same time, this approach would address the major concerns of the broadband providers, because the main substantive provisions of Title II would not be invoked."

Wheeler unveiled a net-neutrality proposal in May that only relied on Section 706. But the plan sparked a massive backlash, because it would have allowed providers to charge websites for faster service. More than 3.7 million people filed comments with the FCC (the most for any issue ever), and the agency is under intense pressure to come up with tougher rules.

An FCC blog post last month suggested that the agency is seriously considering proposals that find a middle ground in the debate.

But the main lobbying group for the cable industry is already pushing back on the potential compromise. In a statement, the National Cable and Telecommunications Association warned that any use of Title II on the Internet "will result in years of uncertainty and legal tussles."

"At a time when the Internet economy is growing and thriving, regulatory uncertainty would only chill investment, innovation and the tremendous progress we've become accustomed to," the group said.

This article is from the archive of our partner National Journal.