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FCC’s Wheeler and Pai spar over net neutrality at Senate hearing

but agree on auction rule reform

L-R: FCC Chairman Tom Wheeler and FCC Commissioner Ajit Pai L-R: FCC Chairman Tom Wheeler and FCC Commissioner Ajit Pai

A Senate commerce hearing headlined as oversight of the FCC quickly focused on one issue: the FCC’s divisive net neutrality order passed last month on a 3-2 party line vote.

The Beltway debate over the FCC’s historic order is unlikely to subside any time soon, especially under a GOP-led Congress that is pursuing a legislative alternative to the order as well as a bill to change how the FCC operates and makes decisions.

Wednesday’s hearing before Senate commerce was the second of eight in five days on the FCC and the net neutrality rule. And that’s before the order hits the courts.

The hearing chewed over famiiar issues. GOP members blasted the order for its substance and its process and Democrats defended it as the best solution to protect the open Internet and as a victory for consumers.

No surprise, lawmakers on both sides of the aisle took their respective party sides and directed most questions to FCC chairman Tom Wheeler and GOP commissioner Ajit Pai. Democratic commissioners Jessica Rosenworcel and Mignon Clyburn, and GOP commissioner Mike O’Rielly got a lot less air time.

Throughout the three hour and 45-minute hearing, Wheeler and Pai sparred over the fine points of the FCC order without a lot of prompting from lawmakers.

“I’m not sure there is common ground,” said ranking member Bill Nelson (D-Fla.). “If the [FCC] chairman says the sky is blue you will say it’s a different color,” Nelson said to Pai.

Over the next few weeks, Republicans will be searching for Democratic support on a bill that would replace the FCC’s order, while codifying the same principles of no blocking, no throttling, no paid prioritization, and transparency. However, the bill would prohibits things the GOP believe the FCC order could lead to, such as rate regulation, and case-by-case review of unanticipated network management practices.

“Like most first bills, our bill isn’t perfect,” said chairman John Thune (R-S.D.), who is working on a blll with his counterparts in the House. “The FCC took the most polarizing path possible. The three of you [Democratic FCC commissioners] chose an option that will only increase regulatory uncertainty. Your actions jeopardized the open Internet that we’re all striving to protect. The Internet is not the old telephone network,”  Thune said.

Ranking member Nelson left the door open to support a net neutrality bill. “The key question we must ask now is how to take what the FCC has done and provide the certainty that only legislation can provide,” he said.

“I have a great deal of faith in Sen. Thune as we go forward on a lot of things in this committee. Whether we can come to an agreement is uncertain, but conversations between me and Thune are quite civil,” Nelson towards the end of the hearing.

Although Wheeler gave a vigorous defense of why he thought the order was “light-touch” regulation, he also said he’d be willing to work with Congress. “I would be happy to provide input to the committee. In any open Internet rule or legislation, there shouldn’t be rate regulation,” Wheeler said.

“I would hope going forward that the commission could play a constructive role, not discourage us, from legislating. We want to put something in a statute that would address the issues of uncertainty and lawsuits,” Thune told reporters after the hearing. “This is a very far reaching move by the FCC that some Democrats support. But I think you also heard some concerns even Democrats have about this process and all the uncertainty that entails.”

It wasn’t all contentious

In a moment of consensus amid the sparring, Wheeler agreed with Pai that the commission should tighten the spectrum auction rules so that large companies could no longer game the system.

Since the conclusion of the AWS spectrum auction last month,  Pai has repeatedly called out DISH for partnering with two companies to gain access to large swaths of new spectrum while claiming a $3 billion taxpayer discount, one that was designed to help small providers or new entrants.  Pai reiterated his concern and opposition during the hearing.

“I’m going to make news here,” said Wheeler.  “I agree with my colleague. I don’t like slick lawyers taking advantage of the rules for the benefit of big companies.  This is a problem we will solve.”

It wasn’t clear that Wheeler is also willing to deny DISH and the two partner companies the small company discount for the AWS spectrum, as Pai had recommended, or whether the chairman’s efforts will be focused on fixing the rules for upcoming incentive auction planned for first quarter 2016.