Waxman's net neutrality bill would strip FCC of authority, leave out wireless net

by Eliza Krigman, CongressDaily Tech Daily Dose

With precious little time left in the 111th Congress, House Energy and Commerce Chairman Henry Waxman's efforts to advance a net neutrality bill may be more of a messaging tool than anything else, observers say.

"A lot of legislation is introduced not because of its likelihood of enactment, but to send a message that will ricochet around the Hill and agencies," said Andrew Lipman, head of the telecommunications, media and technology group at the law firm Bingham.

Against steep odds, Waxman, D-Calif., has been leading an effort to shepherd a measure through Congress that would codify some principles to protect the openness of the Internet.

A draft bill leaked to Tech Daily Dose on Monday revealed a framework that would apply nondiscrimination principles to wireline broadband but not wireless and direct the FCC to deal with enforcement on a case-by-case basis, rather than through rulemaking. Under the draft, the commission would be prohibited from reclassifying broadband as a telecommunications service under title II of the Communications Act, which would apply a more stringent regulatory regime.

With

players from all sides of the issue agreeing that it will be very difficult, if not impossible, to move a net neutrality bill through the Senate, some say it calls into question Waxman's motives.

"The Waxman endgame is to have the FCC's back here and to set forward a minimalist approach that the [commission] can move forward on," one source familiar with the situation said. Providing FCC Chairman Julius Genachowski a "graceful exit" to the broadband regulation conundrum is a priority for the California Democrat, a handful of insiders say.

Industry and Congress have put enormous pressure on the chairman to abandon his proposal to reclassify broadband while consumer advocates will settle for nothing less. Moreover, his efforts to broker a compromise between the telecom industry and public interest groups collapsed over the summer when Verizon and Google offered their own plan that proved unpalatable to the fiercest advocates of net neutrality.

"This could be [Waxman's] last chance to be lead drafter of legislation on what's obviously an important question for telecom/broadband policy," one industry observer said citing the possibility of Republicans taking control of the House after November's midterm elections. "So he's trying to come up with what he sees as a balanced compromise for an interim solution."

The draft legislation calls for all the provisions to sunset in two years.

Lipman echoed that sentiment. Waxman could be "telegraphing to the FCC how a very important member of Congress would like to see this issue resolved," or setting a legislative "placeholder," Lipman noted.

Other industry observers say that congressional action is needed after so many years of debate and nothing to show for it. An Energy and Commerce spokesman did not respond to a request for comment.

Meanwhile, advocates of net neutrality are lobbying the Hill to stop the measure, which has yet to be introduced, saying the leaked version won't protect an open Internet.

"It's unacceptable for Waxman -- a Democrat who's usually good on these issues -- to sell out free speech to the highest bidder, and mislead his constituents about it," Jason Rosenbaum of the Progressive Change Campaign Committee wrote in an email to supporters urging them to call Waxman's office and tell him not to sell out on net neutrality.

article originally published at CongressDaily Tech Daily Dose.

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