April 5, 2018

Opponents to state-level net neutrality make their case again

For the third time in less than two months, opponents of state-level net neutrality legislation made their case at the State House, as one lawmaker said his questions had gone unanswered throughout the series of hearings.

Sen. Michael Barrett -- back on Beacon Hill Tuesday for a hearing of the committee he co-chairs after undergoing leukemia treatment -- grilled a former Federal Trade Commission chairman, pushing him to back up the stance of the internet and cable industry.

"What are the business reasons, if they're not going to block and they're not going to throttle and they're going to be extremely judicious with regards to paid prioritizing?" Barrett asked Jon Leibowitz, who chaired the FTC from 2009 to 2013. "What then is the business case for this extraordinary push to change an Obama-era policy? It can't be just hostility to President Obama. There must be strong business reasons, which typically mean more revenue or reduced costs. What is going on here, if it isn't anything that will affect our constituents?"

The Federal Communications Commission in December adopted an order repealing past rules that deemed internet service a public utility and required internet providers to treat all traffic equally. Since then, state lawmakers have filed a handful of bills aimed at restoring net neutrality protections in Massachusetts, and a special Senate committee has twice heard testimony on the issue.

Net neutrality bills filed by Reps. Dave Rogers and Andy Vargas and Sen. Barbara L'Italien were the subject of Tuesday's hearing before the Joint Committee on Telecommunications, Utilities and Energy

Leibowitz told Barrett he imagined the industry's concern with the Obama-era rules had been over an "extremely regulatory" approach, and said earlier regulations took a "lighter touch" that led to more innovation and consumer benefits.

"Can you give us an explanation of those innovations and those benefits? No one's been able to," Barrett said. "That's why our hopes are pinned on you."

Leibowitz did not provide specific examples in response. In his prepared testimony, he said the FCC's move "will not undermine consumers' online experience or leave consumers unprotected from harmful actions taken by broadband providers.

The repeal, he said, restored the FTC's ability to protect broadband consumers, restoring that agency as "a cop on the beat in the market for broadband services."

Under questioning by Rep. Carolyn Dykema, Tim Wilkerson of the New England Cable and Telecommunications Association said that in addition to the government agencies that serve as watchdogs over internet service providers, the public will now be watching closely to see how networks are run, and restricting certain types of content would amount to "business suicide."

The association's members in Massachusetts are Charter Communications, Comcast, Cox, and Atlantic Broadband.

"Our members have not, do not, and will not block, throttle or discriminate against lawful online activity," Wilkerson said. "This is more than a pledge. It is a legally binding obligation on our companies, and these principles are part of our DNA and they have been for nearly a decade."

A 2010 FCC order required ISPs to publicly disclose their net neutrality principles, he said.

The association wants to see Congress codify the protections under one law, rather than a patchwork of measures imposed by states, Wilkerson said.

Barrett asked him if states should act themselves or give up if Congress does not act.

"Senator, I don't know," Wilkerson said. "I am hopeful that we won't be here talking about this year in and year out."

A group of House lawmakers -- Reps. Jack Lewis, Denise Provost, Solomon Goldstein-Rose, Natalie Higgins and Dylan Fernandes -- who support the net neutrality bills gathered behind Rogers and Vargas as they testified on their legislation.

"Net neutrality has been a longstanding principle of the internet -- the notion that you won't charge consumers different rates, you won't prefer some content over another -- and it goes to the very heart of the way the internet has worked," Rogers said. "But we don't need to take this decision lying down. As a state, we can and should take action."

Vargas said he did not find the "patchwork argument" against state net neutrality laws to be a sound one, since other consumer protection laws already differ by state.

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