Congress Should Oppose H.R. 2666, the “No Rate Regulation of Broadband Internet Access Act”

Today, the Center for Democracy & Technology joined other consumer rights and privacy advocates in sending a letter to the leadership of the House of Representatives opposing H.R. 2666, the “No Rate Regulation of Broadband Internet Access Act.” This bill would strip the Federal Communications Commission (FCC) of authority to review certain practices of broadband providers related to their customers’ privacy. Specifically, the FCC would have no power to inquire into broadband providers’ offers of discounts or other incentives in exchange for the ability to use or disclose customers’ personal information. What does rate regulation have to do with consumer privacy? The need to even ask that question speaks to the main defect in this legislation, which threatens the FCC’s ability to review pay-for-privacy arrangements and to enforce essential net neutrality protections like the no-blocking rule. The bill’s title notwithstanding, it has much less to do with preventing the FCC from setting rates for broadband service than with preventing the FCC from investigating practices that may undermine the open internet rules.

According to the Energy & Commerce Committee Report accompanying the legislation, the bill is merely an attempt to statutorily bind the FCC to Chairman Wheeler’s commitment not to regulate rates for broadband service following the 2015 reclassification of broadband as a Title II telecommunications service. The Open Internet Order already forbears (that is, declines to apply to broadband service) Title II tariffing requirements. In the Committee’s view, this is insufficient because a Commission under a different Chairman could undo the forbearance and because the Order does not prevent the FCC from regulating rates “indirectly through enforcement actions.” The legislation aims to fill this perceived gap by prohibiting the FCC from engaging in broadband “rate regulation,” and then separately and broadly defining the terms “rate” and “regulation.”

One of the most essential qualities an effective regulator must have is curiosity into matters relevant to its mission.

“Rate” is defined as the “amount charged by a provider of broadband Internet access service for the delivery of broadband Internet traffic” whether that rate is a monthly charge, a data cap, the extra amount you may pay not to share your browsing history, or possibly even the incremental charge you pay to reach a particular website. “Regulation” is defined to include any use of rulemaking or enforcement authority to “establish, declare, or review the reasonableness of such rate.” The bill prohibits the FCC from reviewing any practice that affects what a subscriber, or possibly even an edge provider, pays for the delivery of internet traffic.

Recognizing the considerable expanse of its definition of rate regulation, the bill attempts to silence its critics with a few specific carve outs. The bill would still allow the FCC to investigate certain matters related to universal service support, truth-in-billing requirements, enforcement of the open internet rule banning paid prioritization, data roaming, and (to some extent) interconnection. But those exceptions actually make things worse because, by negative implication, every other charge arguably would lie beyond scrutiny. That includes data caps, zero rating arrangements, pay-for-privacy arrangements, and anything else you can dream up that affects what consumers pay for broadband. Indeed, in the litigation that resulted in the D.C. Circuit striking down the core of the 2010 open internet rules, opponents of the rules argued that the no-blocking rule “requir[es] broadband providers to carry the traffic of all edge providers (or classes thereof) at a common, nondiscriminatory rate of zero.” (My emphasis.) Thus, read for all it is worth, H.R. 2666 could render the very heart of net neutrality protections – the no-blocking rule – unenforceable.

As Public Knowledge explained in a recent blog post, the Committee could have addressed its fear of a sudden about-face on rate regulation by a future FCC Chairman simply by defining “rate regulation” as “to set a rate.” That the Committee did not adopt that common-sense amendment – which likely would have led to legislation with broad bipartisan support – strongly suggests that its concern has less to do with rate regulation and more to do with preventing the FCC from investigating practices that may undermine net neutrality protections that Committee leadership has vocally opposed.

By casting the rate regulation prohibition to include “review of the reasonableness” of how broadband providers charge for the delivery of Internet traffic, H.R. 2666 essentially prohibits curiosity.

Fortunately, net neutrality advocates are sharp-eyed readers. Aside from the privacy-related letter mentioned above, a broad coalition of net neutrality advocates sent a letter opposing the bill on a number of grounds similar to those discussed above. The White House has also issued a Statement of Administration Policy announcing its intention to veto the legislation should it clear both Houses.

Opposition to the legislation does not necessarily mean opposition to data caps, zero-rating arrangements, or financial inducements related to privacy per se. These are complicated, contextual inquiries that require a fair amount of study and deliberation over potential benefits and harms. However, H.R. 2666 prohibits the FCC from even engaging in that deliberation. This, in the final analysis, is the legislation’s most dangerous feature. One of the most essential qualities an effective regulator must have is curiosity into matters relevant to its mission. By casting the rate regulation prohibition to include “review of the reasonableness” of how broadband providers charge for the delivery of Internet traffic, H.R. 2666 essentially prohibits curiosity. For that reason alone, members of Congress should oppose it.