H.R. 2666 Could Undermine the FCC’s Authority to Protect an Open Internet

The FCC’s 2015 Open Internet Order was the culmination of years of net neutrality advocacy and a big step toward a free and open Internet. This week, a vote in Congress could undo a lot of that work.

H.R. 2666, the No Rate Regulation of Broadband Internet Access Act, might sound good in theory, but in practice, it could seriously undermine the FCC’s ability to protect the open Internet.

Tell your representative not to undermine net neutrality.

What the Bill Does

As we explained in more detail a few weeks ago, the bill is partly motivated by concerns that the FCC might not abide by a promise it made in the Open Internet Order not to regulate broadband rates. It codifies the FCC’s promise by putting in place a blanket prohibition on FCC rate regulation. At the same time, it tries to soften the categorical ban by creating a list of exemptions, such as regulation to enforce accurate billing or to prevent paid prioritization.

Here’s the problem: network neutrality violations that do not fit neatly within that list could actually be shielded by this legislation. Effectively, the protections are an open invitation to incumbent providers to discriminate in new and creative ways, confident that they will avoid FCC scrutiny. That’s a recipe for expensive litigation. FCC efforts to protect consumers or preserve competition would be subject to judicial challenge as long as a clever lawyer could find a way to claim that an FCC decision regulated a rate and no exemption applied.

We are all for clear rules on FCC authority—including the limits to that authority. If Congress wants to pass real net neutrality legislation, it should. But this bill is not the right way forward. For example, the bill could prevent the FCC from addressing zero-rating practices. These take many forms, but in essence, they involve an ISP providing access to some services for free or at a discount. At EFF, we don’t believe government agencies should generally be in the business of regulating business models; companies should be able to experiment and users can vote with their wallets. We worry, however, that zero-rating practices set up ISPs as gatekeepers to users, especially where there is insufficient competition or transparency. No matter how wide the gates, or how benevolent the keeper, that still means eroding the Internet we know and love, where any innovator and startup has an equal opportunity to become the next cool product. That is why EFF has recommended that the FCC investigate current zero-rating practices (PDF).

The bill also affects other issues that normally do not make front page news but are critical to disadvantaged communities. For example, the FCC has explicitly targeted phone rates prisons charge inmates after finding that prisons and telephone companies were entering into contracts that would kick back excessive charges to the prison industry. Since prisoners do not have a choice on what communications service they use, the FCC has directly intervened by regulating the rates these monopolies charge to the families of prisoners. In the past, EFF has asked the FCC to ensure that charges for advanced communications services such as video calling are tied to costs and to prevent predatory action. If H.R. 2666 were to become law, prison industry lawyers would likely challenge the FCC’s authority to regulate rates in this space due to the legislation’s overly broad approach.

Tell Congress: Don’t Sabotage Net Neutrality

Last time we wrote about H.R. 2666, we hoped the proponents of this legislation would heed our concerns and fix it. Now, the bill is still seriously flawed, and it's headed for a vote in the House of Representatives. We need to remind Congress that the Open Internet Order was a big accomplishment that we all fought for and we won’t stand for surreptitious efforts to undermine it.

Tell your representative not to undermine net neutrality.