59–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 114–478 

NO RATE REGULATION OF BROADBAND INTERNET 

ACCESS ACT 

MARCH 30, 2016.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. UPTON, from the Committee on Energy and Commerce, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 2666] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Commerce, to whom was referred 

the bill (H.R. 2666) to prohibit the Federal Communications Commission from regulating the rates charged for broadband Internet 

access service, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended 

do pass. 

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2 

Background and Need for Legislation .................................................................... 2 

Hearings ................................................................................................................... 5 

Committee Consideration ........................................................................................ 6 

Committee Votes ...................................................................................................... 6 

Committee Oversight Findings ............................................................................... 11 

Statement of General Performance Goals and Objectives .................................... 11 

New Budget Authority, Entitlement Authority, and Tax Expenditures ............. 11 

Earmark, Limited Tax Benefits, and Limited Tariff Benefits ............................. 11 

Committee Cost Estimate ....................................................................................... 11 

Congressional Budget Office Estimate ................................................................... 11 

Federal Mandates Statement ................................................................................. 12 

Duplication of Federal Programs ............................................................................ 12 

Disclosure of Directed Rule Makings ..................................................................... 12 

Advisory Committee Statement .............................................................................. 12 

Applicability to Legislative Branch ........................................................................ 12 


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Section-by-Section Analysis of the Legislation ...................................................... 13 

Changes in Existing Law Made by the Bill, as Reported ..................................... 14 

Minority, Additional, or Dissenting Views ............................................................ 15 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘No Rate Regulation of Broadband Internet Access 

Act’’. 

SEC. 2. REGULATION OF BROADBAND RATES PROHIBITED. 

Notwithstanding any other provision of law, the Federal Communications Commission may not regulate the rates charged for broadband Internet access service. 

SEC. 3. EXCEPTIONS. 

Nothing in this Act shall be construed to affect the authority of the Commission 

to— 

(1) condition receipt of universal service support under section 254 of the 

Communications Act of 1934 (47 U.S.C. 254) by a provider of broadband Internet access service on the regulation of the rates charged by such provider for 

the supported service; 

(2) enforce subpart Y of part 64 of title 47, Code of Federal Regulations (relating to truth-in-billing requirements); or 

(3) enforce section 8.9 of title 47, Code of Federal Regulations (relating to paid 

prioritization). 

SEC. 4. ADDITIONAL RULE OF CONSTRUCTION. 

For purposes of this Act, broadband Internet access service shall not be construed 

to include data roaming or interconnection. 

SEC. 5. DEFINITIONS. 

In this Act: 

(1) BROADBAND INTERNET ACCESS SERVICE.—The term ‘‘broadband Internet access service’’ has the meaning given such term in the rules adopted in the Report and Order on Remand, Declaratory Ruling, and Order that was adopted 

by the Commission on February 26, 2015 (FCC 15–24). 

(2) COMMISSION.—The term ‘‘Commission’’ means the Federal Communications Commission. 

(3) RATE.—The term ‘‘rate’’ means the amount charged by a provider of 

broadband Internet access service for the delivery of broadband Internet traffic. 

(4) REGULATION.—The term ‘‘regulation’’ or ‘‘regulate’’ means, with respect to 

a rate, the use by the Commission of rulemaking or enforcement authority to 

establish, declare, or review the reasonableness of such rate. 

PURPOSE AND SUMMARY

H.R. 2666, No Rate Regulation of Broadband Internet Access Act, 

prohibits the Federal Communications Commission (FCC) from regulating the rates charged for broadband Internet access service 

(BIAS). The bill is intended to prevent the Commission from using 

the reclassification of BIAS under Title II of the Communications 

Act of 1934 to engage in rate regulation, whether directly through 

tariffing or indirectly through enforcement actions. 

The legislation defines rates, regulation of rates, and broadband 

Internet access service. In addition, the legislation carves out specific exceptions from the prohibition on rate regulation, including 

the Commission’s existing authority to enforce its truth in billing 

rules, enforcement of the paid prioritization rule from the Open 

Internet order, and administration of the Universal Service Fund. 

The bill also clarifies that it does not address roaming or interconnection. 

BACKGROUND AND NEED FOR LEGISLATION

The regulation of the relationship between Internet service providers (ISPs) and end users has a long and complex history. DecVerDate Sep 11 2014 02:39 Mar 31, 2016 Jkt 059006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR478.XXX HR478

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ades of legislative and regulatory decisions have shaped the way in 

which that relationship is governed, beginning with early decisions 

about how to differentiate the various layers of the service. The 

FCC’s 1970s rules differentiated data services that processed information from those that simply transmitted information, setting the 

stage for a regulatory regime that acknowledged the difference in 

the delivery of transmissions from the infrastructure that facilitated the delivery. 

The more recent debate over the regulatory classification of 

Internet services forms the basis of the divide over net neutrality 

rules and where the FCC derives the authority to adopt and enforce such regulations. The history of this debate informs a great 

deal of current discussions on how to govern this innovative service. 

As the Internet first entered the commercial sector and access 

became a mainstream commercial product, the U.S. government 

faced a fundamental question: should this new network of networks 

be regulated under the same laws governing legacy telephone networks—laws first articulated in 1934 and used to regulate a government-sanctioned monopoly—or should the government take a 

hands-off approach, letting the Internet grow free from the common 

carrier regulatory regime used to regulate telephony? Through the 

concerted efforts of the FCC and the administration of President 

Bill Clinton, policies were put into place to ensure that the Internet 

would not be subject to common carrier regulations under Title II 

of the Communications Act of 1934. 

There was bipartisan agreement that this light touch regulatory 

regime was the appropriate approach for this new service, particularly as the passage of the Telecommunications Act of 1996 reacted 

in many ways to the failures of burdensome legacy regulations. 

This did not mean that the Internet was entirely free from government oversight; in 2004, former FCC chairman Michael Powell articulated four basic principles of Internet consumer protection. 

Chairman Powell set forth four ‘‘Internet Freedoms’’ that consumers were entitled to: (1) access the lawful Internet content of 

their choice, (2) access legal service and applications, (3) connect 

lawful devices, and (4) have competition among providers of service 

and content. In the same speech, he asserted that while Internet 

openness was a vital goal, government regulations were not necessary, and could potentially harm innovation. 

In 2005, under then-Chairman Kevin Martin, the FCC adopted 

a set of principles based on Powell’s freedoms. These principles 

were intended as policy guidelines to promote adoption and use of 

Internet services. At the time of their adoption, Chairman Martin 

stated that the principles were not enforceable and that the competitive marketplace would preclude the need for any regulation. 

However, in 2008, the enforceability of these principles was tested 

when the FCC attempted to order a broadband provider to cease 

certain network management practices and adhere to the principles. In Comcast Corp. v. FCC (2010), the U.S. Circuit Court for 

the D.C. Circuit (‘‘D.C. Circuit’’) ruled that the FCC did not demonstrate the statutory authority necessary to issue the order enforcing the principles. 

As the Court was deliberating the Comcast case, the FCC, under 

the direction of then-Chairman Julius Genachowski, was working 


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to promulgate new net neutrality rules codifying the principles 

under a new theory of statutory authority. Following the Court’s 

decision, the FCC initially proposed reclassifying broadband Internet access service as a telecommunications service, subject to the 

common carrier rules of Title II. Ultimately, the FCC instead relied 

on Section 706 of the Telecommunications Act of 1996, claiming it 

as a statutory grant of authority. The 2010 Order imposed requirements for disclosure and transparency on providers, and banned 

blocking and discrimination of network traffic, subject to reasonable network management. The rules differentiated between fixed 

broadband providers—typically those providing service to the 

home—and mobile broadband providers, based on the technological 

differences in the two platforms. 

The rules were again challenged in court on the grounds that the 

FCC lacked statutory authority, the decision to implement the 

rules was arbitrary and capricious, and that the rules were in violation of laws prohibiting the FCC from treating broadband providers as common carriers. In January of 2014, the D.C. Circuit 

upheld the Commission’s rule requiring broadband providers to disclose network management practices, but struck down the rules 

banning blocking and unreasonable discrimination. Unlike in previous challenges, the court ruled that the FCC had demonstrated 

that it has the authority under Section 706 to regulate broadband 

network management practices, but that the rules adopted were essentially common carrier regulations, which conflicted with prior 

Commission decisions classifying broadband as a non-common carriage ‘‘information service.’’ 

Following the Court’s decision to partially overturn the Open 

Internet rules, the FCC, under Chairman Tom Wheeler, launched 

a proceeding to seek public comment on how to implement net neutrality rules. A May 2014 Notice of Proposed Rulemaking sought 

comment on the various options for legal authority for implementing rules. In November 2014, President Barack Obama 

weighed in on the net neutrality debate, calling on the FCC to 

enact strong rules under Title II of the Communication’s Act, including no blocking, no throttling, increased transparency, and no 

paid prioritization. The President also called for mobile broadband 

services to be included, and acknowledged that there should be 

some exceptions for reasonable network management and specialized services. While calling for reclassification of broadband consumer access as Title II services, the President urged the FCC to 

forbear from rate regulation of broadband. 

In February 2015, the FCC voted to adopt rules that reclassified 

broadband Internet access service as a Title II telecommunications 

service, consistent with President Obama’s preferred approach. The 

Commission adopted rules to prevent blocking, throttling, and paid 

prioritization. Additionally, the FCC chose to forbear from select 

provisions of Title II. 

Despite the Commission’s forbearance, the reclassification of 

broadband Internet access service as a Title II service poses a serious risk for the regulation of rates charged by providers for the delivery of Internet traffic, which would be an unprecedented move 

in the market. Though Chairman Wheeler has repeatedly stated 

that the Commission does not intend to regulate rates, including 

during a hearing before the Subcommittee on Communications and 


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Technology, it is not clear that this is an assurance the Chairman 

can make, particularly given the fact that this Commission expressly overturned the decisions of prior Commissions. 

There are two ways the Commission regulates rates under Title 

II: through its tariffing authority and through its authority to prohibit unjust and unreasonable rates. Whereas tariffing is beforethe-fact regulation of rates, the Commission’s authority to regulate 

through the adjudication of complaints provides for after-the-fact 

regulation of rates. The FCC chose to forbear from the provisions 

of Title II that deal with pre-existing tarrifing requirements, which 

addresses much of the concern surrounding ex ante rate regulation. 

However, two major problems remain. First, FCC forbearance is an 

agency decision that can be reversed by a future Commission decision, creating an atmosphere of uncertainty. Additionally, the 

Order still applies Sections 201 and 202 of the Communications Act 

to broadband Internet access service, which grant the Commission 

authority over unjust and unreasonable rates. These rules leave 

open the possibility for future regulation of rates through the 

FCC’s enforcement authority, a potential that creates immense uncertainty for providers seeking to implement innovative and novel 

pricing or delivery plans for consumers. 

HEARINGS

The Subcommittee on Communications and Technology held a 

hearing on January 21, 2015, to examine less burdensome alternatives to the Title II reclassification of the Internet. The hearing, 

entitled ‘‘Protecting the Internet and Consumers Through Congressional Action,’’ considered a discussion draft authored by Chairman 

Upton and Chairman Walden, which would put into law the bright 

line net neutrality rules without the threat of rate regulation. The 

Subcommittee received testimony from: • Meredith Atwell Baker, CTIA—The Wireless Association; • Chad Dickerson, Etsy; • Jessica Gonzalez, National Hispanic Media Coalition; 

• Paul Misener, Amazon.com; 

• Michael Powell, National Cable & Telecommunications Association; and 

• Nicol Turner-Lee, Minority Media & Telecom Council. 

On February 25, 2015, just prior to the Commission’s vote on the 

proposed rules, the Subcommittee on Communications and Technology held a hearing entitled ‘‘The Uncertain Future of the Internet’’ to discuss the potential impacts of the reclassification. The 

Subcommittee received testimony from: 

• Rob Atkinson, Information Technology and Innovation 

Foundation; 

• Former Congressman Rick Boucher, Internet Innovation 

Alliance; 

• Larry Downes, Georgetown Center for Business and Public 

Policy; and, 

• Gene Kimmelman, Public Knowledge. 

On October 27, 2015, the Subcommittee on Communications and 

Technology held a hearing entitled ‘‘Common Carrier Regulation of 

the Internet: Investment Impacts’’ to examine the economic effects 

of the reclassification and the threat of rate regulation. The Subcommittee received testimony from: 


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• Nicholas Economides, professor, New York University 

Stern School of Business; • Frank Louthan, Raymond James Financial; • Michael Mandel, the Progressive Policy Institute; and, • Robert Shapiro of Sonecon LLC. 

On January 12, 2016, the Subcommittee on Communications and 

Technology held a hearing on H.R. 2666 and received testimony 

from: • Elizabeth Bowles, WISPA; • Harold Feld, Public Knowledge; and, • Robert McDowell, Wiley Rein LLP, former FCC Commissioner. 

COMMITTEE CONSIDERATION

On June 4, 2015, Representative Adam Kinzinger introduced 

H.R. 2666, the No Rate Regulation of Broadband Internet Access 

Service. 

On February 10 and 11, 2016, the Subcommittee on Communications and Technology met in open markup session and forwarded 

H.R. 2666 without amendment, to the full Committee by a vote of 

15 yeas and 11 nays. Two amendments to the legislation, offered 

by Ranking Member Eshoo and Representative Matsui, were defeated. 

On March 24 and 25, 2016, the full Committee on Energy and 

Commerce met in open markup session. Chairman Walden offered 

an amendment to the bill to clarify the scope of the prohibition and 

define terms used in the bill, which was adopted. Ranking Member 

Eshoo, Representative Matsui, and Representative McNerney offered amendments that were defeated. The Committee ordered 

H.R. 2666 reported to the House, as amended, by a record vote of 

29 yeas and 19 nays. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion 

to report legislation and amendments thereto. The following reflects the record votes taken during the Committee consideration: 


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COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee held hearings and made findings that are reflected in this report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

The goal and objective of H.R. 2666 is to prohibit the FCC from 

engaging in rate regulation of broadband Internet access service 

through the reclassification of the service under Title II of the 

Communications Act of 193. 

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX

EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee finds that H.R. 2666 

would result in no new or increased budget authority, entitlement 

authority, or tax expenditures or revenues. 

EARMARK, LIMITED TAX BENEFITS, AND LIMITED TARIFF BENEFITS

In compliance with clause 9(e), 9(f), and 9(g) of rule XXI of the 

Rules of the House of Representatives, the Committee finds that 

H.R. 2666 contains no earmarks, limited tax benefits, or limited 

tariff benefits. 

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974. 

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House 

of Representatives, the following is the cost estimate provided by 

the Congressional Budget Office pursuant to section 402 of the 

Congressional Budget Act of 1974: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, March 29, 2016. 

Hon. FRED UPTON, Chairman, Committee on Energy and Commerce, 

House of Representatives, Washington, DC. 

Dear MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2666, the No Rate Regulation of Broadband Internet Access Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Kathleen Gramp. 

Sincerely, 

KEITH HALL. 

Enclosure. 

H.R. 2666—No Rate Regulation of Broadband Internet Access Act 

H.R. 2666 would amend existing law to prohibit federal regulation of rates charged for services related to broadband Internet acVerDate Sep 11 2014 02:39 Mar 31, 2016 Jkt 059006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\HR478.XXX HR478

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cess. The Federal Communications Commission (FCC) currently 

regulates certain aspects of those services, including activities related to blocking, degrading, or charging fees to prioritize content. 

At this time, the agency does not regulate the prices charged to 

consumers for broadband services. 

Based on information from the FCC, CBO estimates that implementing the bill would have no significant effect on the agency’s 

workload and spending relative to current policies. Moreover, under 

current law, the FCC is authorized to collect fees sufficient to offset 

the cost of its regulatory activities each year. Therefore, CBO estimates that the net cost to implement H.R. 2666 would be negligible, assuming annual appropriation actions consistent with the 

agency’s authorities. Because enacting H.R. 2666 would not affect 

direct spending or revenues, pay-as-you-go procedures do not apply. 

CBO estimates that enacting H.R. 2666 would not increase net 

direct spending or on-budget deficits in any of the four consecutive 

10-year periods beginning in 2027. 

H.R. 2666 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

not affect the budgets of state, local, or tribal governments. 

The CBO staff contact for this estimate is Kathleen Gramp. The 

estimate was approved by Theresa Gullo, Assistant Director for 

Budget Analysis. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 2666 establishes or reauthorizes a program 

of the Federal Government known to be duplicative of another Federal program, a program that was included in any report from the 

Government Accountability Office to Congress pursuant to section 

21 of Public Law 111–139, or a program related to a program identified in the most recent Catalog of Federal Domestic Assistance. 

DISCLOSURE OF DIRECTED RULE MAKINGS

The Committee estimates that enacting H.R. 2666 does not direct 

any rule making within the meaning of 5 U.S.C. 551, as specified 

in Section 2(a). 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act were created by this legislation. 

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act. 


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SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title 

Section 1 provides that the Act may be cited as the ‘‘No Rate 

Regulation of Broadband Internet Access Act.’’ 

Section 2. Regulation of broadband rates prohibited 

Section 2 prohibits the FCC from regulating the rates charged for 

broadband Internet access service, as defined in the rules adopted 

in the FCC’s 2015 Open Internet Order. 

Section 3. Exceptions 

Section 3 details specific exceptions from the prohibition, intended to prevent unintended effects, many of which were identified by members and witnesses during Committee consideration of 

the legislation. This section clarifies that nothing in the legislation 

shall affect the authority of the FCC to condition receipt of universal service support on the regulation of rates charged by the 

provider for the supported service. In addition, this section makes 

an exception for the FCC’s ability to enforce its truth-in-billing 

rules, an important consumer protection. Finally, this section clarifies that it does not affect the Commission’s authority to enforce its 

bright line rule on paid prioritization. 

Section 4. Additional rule of construction 

Section 4 clarifies the scope of the legislation, instructing that for 

purposes of this Act, broadband Internet access service shall not be 

construed to include data roaming or interconnection. In the Open 

Internet Order, as well as this bill, the FCC defines broadband 

Internet access service as ‘‘a mass-market retail service by wire or 

radio that provides the capability to transmit data to and receive 

data from all or substantially all Internet endpoints. . . .’’ Though 

interconnection and roaming are not mass-market retail services 

and therefore not subject to the prohibition on rate regulation for 

purposes of this bill, the rule of construction removes any ambiguity that might exist. 

Section 5. Definitions 

Section 5 defines relevant terms for the purposes of this bill. For 

the term ‘‘broadband Internet access service,’’ the bill adopts the 

meaning given to the term in the FCC’s Open Internet Order. This 

section clarifies that the term ‘‘Commission’’ refers to the Federal 

Communications Commission. 

This section also defines the term ‘‘rate’’ as the amount charged 

by a provider of broadband Internet access service for the delivery 

of broadband Internet traffic. It also defines ‘‘regulation’’ and ‘‘regulate’’ with respect to a rate as the use by the Commission of its 

rulemaking or enforcement authority to establish, declare, or review the reasonableness of such rate. This definition is intended to 

reach one of the motivating concerns behind the bill: after-the-fact 

rate regulation through enforcement. 

The Committee intends that the term ‘‘rates’’ be interpreted 

broadly, extending beyond a simple price to any provider-offered 

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pretation of that term by the Commission itself and by Courts that 

have addressed the question in the context of rates charged by providers of communications services. 

For instance, in the context of interpreting Section 332(c) of the 

Communications Act governing commercial mobile radio service 

(CMRS) providers, the Commission has found that ‘‘regulation of 

rates includes regulation of ‘rate levels and rate structures,’ such 

as whether to charge for calls in whole-minute increments and 

whether to charge for both incoming and outgoing calls.’ ’’ In other 

contexts, the Commission has found that a rate or price of zero is 

considered a ‘‘rate.’’ In the context of broadband Internet access 

service, the Committee likewise intends that the Commission interpret the term ‘‘rates’’ broadly, including by considering zero-rating 

(i.e., not charging for certain kinds of data) a ‘‘rate’’ because it involves the pricing of certain data at zero. 

Courts have agreed with the FCC’s expansive definition of the 

term ‘‘rates’’ in the context of communications services, noting that 

a ‘‘rate’’ includes those practices that have a relationship to the 

amount charged to or paid by the customer for service. Similarly, 

in Aubrey v. Ameritech Mobile Communications, Inc., a federal district court held that a plaintiff’s challenge to a wireless service provider’s early termination fee (ETF) was preempted by Section 332 

of the Act because the ETF itself was a ‘‘rate charged.’’ The Committee intends that courts also interpret the term ‘‘rates’’ broadly 

in the context of assessing any efforts by the Commission to regulate how broadband Internet access service is offered. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

This legislation does not amend any existing Federal statute. 


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1 At the subcommittee markup of the bill, Democrats offered amendments to help address 

Democratic concerns with H.R. 2666. In particular, Ranking Member Anna Eshoo (D–CA) offered an amendment to codify the FCC’s decision to not set broadband rates. Rep. Doris Matsui 

(D–CA) also offered an amendment, retaining the existing language in H.R. 2666, but reserving 

specific FCC authority in areas unrelated to rate regulation. 2For example, an amendment offered by Rep. Jerry McNerney (D–CA) at full committee was 

similarly voted down. Mr. McNerney’s amendment would have preserved the FCC’s authority 

to act in the public interest, convenience, and necessity in spite of H.R. 2666’s sweeping prohibition. 

DISSENTING VIEWS 

These Democratic dissenting views offer the minority’s explanation of its opposition to the passage of H.R. 2666—the No Rate 

Regulation of Broadband Internet Access (No Rate Regulation Act). 

Proponents claim this bill is merely an attempt to prevent the Federal Communications Commission (FCC or Commission) from using 

its 2015 reclassification of broadband Internet access service under 

Title II of the Communications Act to engage in rate regulation. 

Democratic members of the Committee have publicly stated our 

agreement with the intent behind the bill. We have noted, however, 

that as drafted and reported out of Committee, H.R. 2666 goes far 

beyond its stated goal. 

Nonetheless, Democrats attempted to arrive at a compromise 

with the Republican majority through negotiations and by offering 

substantive amendments at both the subcommittee1 and full committee markups.2 Such a compromise would have significantly improved H.R. 2666. Unfortunately, the Republican majority declined 

all of the Democratic amendments. Additionally, the majority’s 

eleventh hour changes to the bill failed to sufficiently narrow the 

bill’s expansive reach and would continue to leave consumers unprotected. 

I. BACKGROUND

The FCC adopted net neutrality rules in February 2015 to protect consumers, free expression, and innovation. The FCC rooted its 

decision in multiple sections of the Communications Act. Most significantly, the FCC’s Order relied on a decision by the D.C. Court 

of Appeals in Verizon v. FCC, to reclassify broadband Internet access service as a telecommunications service under Title II of the 

Communications Act. 

Based on the Court’s remand instructions, as well as its own 

record, the FCC determined that many aspects of Title II were not 

relevant to modern broadband service. Accordingly, for broadband 

Internet access service, the FCC chose not to apply over 700 provisions in Title II, including parts of Sections 201 and 202. In particular, the FCC chose not to apply its regulations related to rate 

setting, tariffing, and last-mile unbundling. Yet, despite the FCC’s 

forbearance from regulating broadband Internet access service 


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3 House Committee on Energy and Commerce, Subcommittee on Communications and Technology, Hearing on Four Communications Bills, 114th Cong. (Jan. 12, 2016) (Testimony of the 

Honorable Robert McDowell). 

rates, Internet service providers have voiced fears that Title II reclassification makes it easier for a future FCC to regulate rates. 

II. FEARS OF FCC’S DESIRE TO REGULATE BROADBAND INTERNET

ACCESS RATES ARE EXAGGERATED

Fears that the current FCC, or a succeeding commission, will 

regulate broadband rates are exaggerated based on the current 

marketplace for broadband Internet access service and the FCC’s 

action in choosing not to apply the rate setting provisions of Title 

II. Indeed, this Commission has acted reasonably and prudently. 

There is no reason to believe, nor has any good one been articulated, that future commissions will ignore or depart from this 

precedent, absent good reason for doing so. 

The regulation prohibition, as contained in the bill reported out 

of our full committee, takes a very static view of the market for 

broadband Internet access service. It also completely ignores the 

reasonableness and even-handedness of the Commission’s approach 

to date in defining and deciding to what extent broadband Internet 

access service should be regulated. Despite this, Democrats attempted to ameliorate the Republican’s concerns regarding the possible actions of a future FCC. 

Ranking Member Eshoo (D–CA) offered an amendment—at both 

Subcommittee and full Committee markup—that would permanently prevent the FCC from setting rates for broadband service. 

In effect, Ms. Eshoo’s amendment would prevent the FCC from 

ever telling a broadband provider what it could charge consumers. 

Despite the consistency between Ms. Eshoo’s amendment and the 

stated goal of H.R. 2666, Republicans defeated this amendment in 

a party line vote. 

Additionally, Representatives Matsui (D–CA) and McNerney (D– 

CA) tried to curtail some of the bill’s harms that the Republicans 

claimed were unintended. They offered two straightforward amendments that would have set out a non-exhaustive list of issues that 

were supposedly beyond the scope of the bill, such as the FCC’s 

continued ability to act in the public interest and to protect consumers from discriminatory practices. These amendments were rejected on a party line vote. 

III. H.R. 2666 COULD LEAD TO UNDESIRED EFFECTS

The No Rate Regulation Act has the potential to harm consumers 

far more than it would benefit them. The central issue raised by 

H.R. 2666, as introduced, was the bill’s failure to define what it 

was prohibiting. Without defining the term ‘‘rate regulation,’’ experts asserted that the bill could result in vast unrelated effects, 

impacting the FCC’s authority to act on wholly unrelated issues,3

including truth in billing practices and discriminatory data caps; 

ensuring broadband availability through the universal service fund 

(USF); addressing rate-related issues in merger reviews; and ensuring enforcement against paid prioritization, among others. 


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Two hours before the Committee’s markup of H.R. 2666, Chairman of the Subcommittee on Communications and Technology Greg 

Walden (R–OR) submitted, and the Committee adopted on a party 

line vote, an amendment to specifically preserve the FCC’s authority over some issues and to add definitions for the terms ‘‘rate’’ and 

‘‘regulate.’’ The amended bill, however, would do nothing to protect 

the FCC’s authority under significant parts of the FCC’s open 

Internet rules, the FCC’s merger review mandate, the FCC’s authority to act in the public interest, or the FCC’s authority to address unfair or discriminatory practices. 

Many Democratic members raised concerns that despite decades 

of law and regulation on similar issues in a number of contexts, the 

definitions of rate and regulate were not tethered to any other 

source of law or authority. Moreover, the definitions—first presented to the Democratic members of the Committee two hours before the markup—seemed so broad as to leave unaddressed many 

of the concerns raised about the underlying bill. Without any time 

to review or negotiate these novel and broad definitions, Democratic members were forced to oppose the amendment. 

IV. CONCLUSION

H.R. 2666 would have far reaching consequences that could drastically affect the Commission’s authority to continue its work. For 

these reasons, we cannot support the passage of H.R. 2666, as it 

is currently drafted, and we strongly urge our colleagues in the 

House to withhold their support for the measure as well. 

FRANK PALLONE, JR., 

Ranking Member, 

Committee on Energy and Commerce. 

ANNA G. ESHOO, 

Ranking Member, 

Subcommittee on Communications and Technology. 

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