by Griffin Davis, Communications Intern & Kevin Erickson, Communications Associate

In the wake of the FCC’s vote last Thursday to bring forward a Notice of Proposed Rulemaking the House Subcommittee on Communications and Technology convened yesterday to question FCC Chairman Tom Wheeler on recent FCC activities, with an emphasis on the ongoing debate over net neutrality.

Most public outcry over Wheeler’s proposed rules thus far has come from citizens and organizations and companies that are concerned that Wheeler’s plan won’t give the FCC adequate authority to ensure strong protection for real net neutrality. Among that group: dozens of musicians, actors, comedians, and performers who signed on to a letter last week in advance of the vote. While some members of the house subcommittee hearing echoed these concerns, others were opposed to net neutrality entirely and criticized Wheeler’s proposal from the other direction.

A central issue at stake is where the FCC authority’s on net neutrality should be derived—from section 706 of the Telecommunications act, as Wheeler initially proposed, or from Title II, which would allow broadband to be treated as a “common carrier” utility and thus more strongly regulated—an option that is now “on the table” for discussion in the current NPRM. (We, along with a broad coalition of organizations, have repeatedly argued that Title II authority will be necessary to protect the open internet). Among the critics of Wheeler’s approach was Rep. Henry Waxman (D-CA) who supported using section 706 where appropriate, but contended that the FCC needs to use their “Title II [of the Communications Act] authority as a backstop authority to preserve the open internet.”

Waxman and many others among the Subcommittee members expressed concerns about the possibility of paid prioritization, which would give companies who have made deals with ISPs better service and placement than their competitors, who could be at risk of being excluded entirely. This is of course, of utmost concern to artists and independent labels who need the internet to remain a level playing field if they are to compete with the entertainment offerings of giant corporations. Rep. Doris Matsui (D-CA) argued that the U.S.“cannot afford a two tier internet system,” and Wheeler tried to reassure her that he shared that sentiment, saying “there is only one internet…not a fast internet and a slow internet” and that a two-tier system was “commercially unreasonable.” adding that any ISP activity that “affects the virtuous cycle” between demand for free-flowing information and investment in networks “is unlawful.” But concerns remained about whether future FCC commissioners would agree. And when asked by Rep. Anna Eshoo (D-CA) whether paid prioritization should be simply banned outright, Wheeler didn’t offer a direct answer but noted that this question would be under consideration in the rulemaking process.  Additional concern was voiced by representatives from rural districts, including Rep. Peter Welch (D-VT), who feared that the loss of net neutrality would be particularly devastating for residents of rural areas. Wheeler attempted to reassure Welch and others by stating his commitment that “everyone ought to have equal access.”

It is important to note that while Wheeler’s statements at the hearing may be indicative of his current thinking, he was adamant in reassuring members of the subcommittee that no decisions will be made until the comment period established by the NPRM has ended. That means that it’s up to all of us to get active and weigh in.

This most recent iteration of the ongoing net neutrality debate happens amid a flurry of consolidation in the telecom industry, as Time Warner Cable and Comcast have proposed a merger, and AT&T has announced its intentions to purchase satellite TV provider DirecTV. Wheeler declined to advance an opinion when asked by Rep. Diana Degette (D-CO) about whether this consolidation was generally good or bad for consumers, but noted that the FCC would be considering arguments from a broad public interest point of view. Representatives Matsui & Eshoo also called for more congressional hearings on both proposed mergers, though it remains to be seen whether committee chairman Rep. Greg Walden (R-OR) would agree to schedule these. In the meantime the controversy over these mergers shows no sign of dying down. This morning, outside Comcast’s annual shareholder meeting in Philadelphia, protestors delivered 400,000 signatures in opposition to the merger of Time Warner & Comcast. We share their concerns, and will continue to make noise.