House Republicans yesterday released a plan to slash the Federal Communications Commission’s budget by $69 million and prevent the FCC from enforcing net neutrality rules, “rate regulation,” and its plan to boost competition in the set-top box market.
The proposal is the latest of many attempts to gut the FCC’s authority, though it’s unusual in that it takes aim at two of FCC Chairman Tom Wheeler’s signature projects while also cutting the agency’s budget. The plan is part of the government’s annual appropriations bill.
“The bill contains $315 million for the FCC—a cut of $69 million below the fiscal year 2016 enacted level and $43 million below the [agency’s] request,” said an announcement by the House Appropriations Committee chaired by Rep. Hal Rogers (R-Ky.), who received $25,500 from the telecom industry in the current campaign cycle. “The legislation prohibits the FCC from implementing the net neutrality order until certain court cases are resolved, requires newly proposed regulations to be made publicly available for 21 days before the Commission votes on them, prohibits the FCC from regulating broadband rates, and requires the FCC to refrain from further activity of the recently proposed set-top box rule until a study is completed.”
The set-top box study requirements could delay the process by one year, taking it past President Obama’s term and potentially past Wheeler’s tenure as FCC chairman.
The changes, which begin on page 137 of a 259-page budget plan for fiscal year 2017, combine several tactics that Republicans have used in attempts to undermine the FCC’s regulatory plans. Republicans have previously proposed bills banning “rate regulation,” even though the FCC has made no move to set the rates charged by home Internet providers. The GOP proposals define rate regulation so broadly that Wheeler says they would prevent the FCC from enforcing key net neutrality provisions and disrupt its process for reviewing mergers.
The budget bill again uses a definition of rate regulation that goes far beyond the utility rate-setting traditionally imposed on landline phone providers. The proposal would prevent the FCC from using its net neutrality rules to act against discriminatory data cap policies, among other things. The FCC is currently examining zero-rating plans that impose data caps on some types of content and not others, but this bill would prevent the FCC from taking any action against such plans.
“None of the funds made available by this Act may be used to regulate, directly or indirectly, the prices, other fees, or data caps and allowances… charged or imposed by providers of broadband Internet access service… regardless of whether such regulation takes the form of requirements for future conduct or enforcement regarding past conduct,” the proposal says.
This rate regulation provision would undermine the agency’s net neutrality authority in perpetuity, regardless of what happens in the broadband industry’s lawsuits that attempt to overturn the rules entirely. In the meantime, the budget bill would prevent the FCC from enforcing any of its net neutrality rules until the lawsuits and all possible appeals are exhausted.
GOP tries to run out the clock on set-top box plan
The budget bill also targets Wheeler’s set-top box proposal that aims to let cable TV customers watch TV channels on devices that don’t have to be rented from a cable company. To accomplish this, Wheeler’s plan would require pay-TV providers to make video programming available to makers of third-party devices and software without the need for a CableCard.
The Republicans’ new budget bill would prevent the FCC from taking any action on the set-top box plan until the agency completes a study complying with various requirements. The study would have to be peer-reviewed and conducted by an institution of higher education. It would need to answer the various objections already raised by opponents and “evaluate the potential costs and benefits of the proposed rule and the potential costs and benefits of other market-based solutions.”
The FCC would have to take public comments on the study for at least 90 days. After that, the proposal says the FCC must wait another 180 days before taking any action.
The government’s next fiscal year begins on October 1. The timing requirements alone could push the set-top box process into late June 2017, and that doesn’t include the time it actually takes to complete the study. This proposed process would be in addition to the standard public comment process that the FCC is already following.
If this were passed, the set-top box rulemaking process could be dragged out until after Wheeler leaves the chairman’s office. Technically, Wheeler’s five-year term as chairman doesn’t end until November 2018, and he hasn’t said whether he has any plans to leave before then. But it’s customary for FCC chairs to leave just before or within a few months after a new presidential term begins. Excluding acting chairs, the last FCC chairman who served at least one additional year after a presidential election was Mark Fowler, who served under President Reagan from 1981 to 1987, leaving two years after the beginning of Reagan’s second term. Wheeler’s case is different, as Obama—a supporter of the set-top box plan—will no longer be president after January 20.
The House Appropriations Committee also tried to kill the FCC’s net neutrality rules in a budget proposal a year ago. In that case, the White House urged Republicans to stop using the government’s budget to enact “unrelated ideological provisions.”