Lawmakers Eye Road Ahead on Net Neutrality Amid Final CRA Push

Thursday's Fight for the Future-led “Day of Action” promoting the CRA resolution was viewed as a last-ditch bid after a monthslong stall (see 1811050050), lobbyists on all sides told us. Newly elected Rep. Joe Morelle, D-N.Y., signed on Wednesday to a discharge petition to force a floor vote, boosting support to 178 members. The petition needs 218 signatories for that. The Senate passed the resolution in May, 52-47 (see 1805160064).

House Communications Subcommittee ranking member Mike Doyle, D-Pa., the CRA resolution's lead sponsor, told us he will keep actively pursuing passage until the next Congress, despite believing it faces headwinds (see 1811140055). Doyle is near certain to be the subcommittee's chairman next year (see 1811070054). Net neutrality will remain “something we'll be looking at” as part of House Communications' agenda regardless of the CRA's fate, Doyle told us. “While we don't know exactly what form” future action will take, “it's definitely going to be something we'll look at legislatively.”

Sen. Ed Markey, D-Mass., who led the Senate CRA measure, believes it's too early to talk about legislative alternatives, noting this session “isn't over yet.” Markey said he and others “feel good about” the trajectory of pending challenges of the FCC rescission before the U.S. Court of Appeals for the District of Columbia Circuit in Mozilla v. FCC, No. 18-1051. Oral argument is Feb. 1 (see 1809240019).

The House has an opportunity to hold net neutrality-focused hearings that could “reignite interest in the issue and explain the issue to the American people,” Markey said. “It's going to become an even bigger issue next year than it's been so far this year because the hearings will be a forum for exploring what the real consequences are” of the FCC rescission order, which “will help us over on the Senate side as well.”

Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, is “happy to enshrine net neutrality in statute” but is resistant to a Republican net neutrality bill originally drafted in 2015 (see 1506040046) because it “guts” FCC ability to enforce the rules. The bill, led by Senate Commerce Committee Chairman John Thune, R-S.D., and House Commerce Committee GOP leaders, returned as a discussion point last year (see 1707310066). “I would have no objection” to that proposal sans that language, and if the GOP “comes to the table with something serious, we would be wide open,” Schatz said.

GOP Hopes

Next Congress “could be an opportune time” to pass a compromise net neutrality bill, but “it's going to depend upon the Democrats being willing" to negotiate, Thune said.

In recent years “they've been unwilling to do that,” instead opting to pursue remedies at the FCC and in court, Thune said. Leaving as Commerce chairman, he's interested in taking up the Senate Communications gavel (see 1811150040). “We'll see what [the Democrats] put forward” on net neutrality next Congress and “hopefully they'll work with us on that in a bipartisan way now that they'll have the gavel,” said House Commerce Chairman Greg Walden, R-Ore.

There's wide agreement on a net neutrality bill to include bans on blocking and throttling. Any serious negotiation on compromise would likely include fierce debates on whether to include a ban on paid prioritization and on the roles the FCC and FTC would play in enforcement, lawmakers and lobbyists on all sides said. The Open Internet Preservation Act (HR-4682), filed by outgoing House Communications Chairman Marsha Blackburn, R-Tenn., (see 1811290025) doesn't include language on paid prioritization, a sign of widening divisions among Republicans on that (see 1712200057).

Paid prioritization language “would likely be one of the points you'd have to negotiate” given the need to allow emergency services and some other forms of traffic to be prioritized, Thune said. Any restriction on those activities would require “pretty good vetting,” Walden said. “If not done properly, you can create situations that could be a risk to health and life because there are some things you want to get through faster. Cat videos can probably be slower than real-time operations.”

Uncertainties

Public Knowledge Senior Policy Counsel Phillip Berenbroick questioned how much effort Democrats should put into a legislative compromise since there are “other avenues” like the D.C. Circuit challenge. The GOP-controlled FCC “is not going to be in place for all time” and it's possible a future commission would revisit net neutrality rules. Berenbroick cited California's adoption of net neutrality rules and efforts in other states.

House Democrats could seek to pass their own net neutrality bill, but it's unclear it would be worth “the amount of committee time and floor time” it would eat up given limited chances the GOP-controlled Senate would agree to Democrats' preferred language, Berenbroick said. Most GOP-sponsored net neutrality bills touted in recent Congresses have been half-measures at best, with only the 21st Century Internet Act (HR-6393) a “good-faith effort to engage” on a compromise, he said. “Getting a bad compromise bill just because you can try to pass one through a divided Congress would probably be short sighted.”

It's also not clear how willing Senate Democrats will be to negotiate on a net neutrality compromise if Sen. Maria Cantwell, D-Wash., becomes Senate Commerce ranking member, said American Action Forum Director-Technology and Innovation Policy Will Rinehart. Ranking member Bill Nelson, D-Fla., lost re-election, leading many to expect Cantwell will seek to succeed him (see 1811190045). Nelson has been adamant about his desire for a compromise even as he supported the CRA measure, Rinehart said. Cantwell has been far more strident on net neutrality, including filing 2011 legislation that would have codified net neutrality principles in Communications Act Title II (see the Jan. 26, 2011, issue), Rinehart said.