House Commerce Democrats Ponder Direction on Net Neutrality; Bill Possible

Democratic lawmakers said in interviews they aren't interested in combining net neutrality and tech privacy legislation, an idea some industry officials suggested. A separate privacy legislation track has begun (see 1901090038).

“The idea is clearly to put net neutrality rules back in place” at the FCC and ensure “a free and open internet agreement,” said House Commerce Committee Chairman Frank Pallone, D-N.J. “We're obviously not happy with the FCC's repeal” as shown by the CRA push last year. Pallone set a trio of hearings for later this month on other Democratic priorities under the committee's jurisdiction, and intends for a hearing early this year on net neutrality (see 1812310008).

“There are some other issues that we want to bring to the forefront right away” before net neutrality, but “we obviously want” to examine that issue early this Congress, said likely incoming House Communications Subcommittee Chairman Mike Doyle, D-Pa. “We want to get organized first” and then “we'll be in a much better position” to set House Commerce's agenda. House Democratic leaders are beginning this week to finalize committee assignments for all members, with an eye to formally beginning committee-level work following the weeklong Martin Luther King Jr. Day recess (see 1901040043).

Reps. Anna Eshoo, D-Calif., and Peter Welch, D-Vt., said they too are thinking about how House Commerce should move forward. “There are a lot of things that are not that far down the road” that will likely factor into how the committee should be involved here, including a three-judge U.S. Court of Appeals for the D.C. Circuit panel review of Mozilla v. FCC, Eshoo said. Oral argument of the case is set for Feb. 1 (see 1901020040). “We don't know” how that court will rule, and "we need a strategy that takes those factors into consideration,” Eshoo said. “We have to think ahead,” but “my overall goal is to protect” the 2015 rules.

Bill Options

Pallone, Doyle and others are privately grappling with how to achieve the goals they set in the CRA measure via a different legislative avenue, since a refiled version would no longer bypass regular order, lobbyists said. One option being considered is to “write a bill that would put back in place the 2015 order" via statute instead of reversing the FCC's action, said one lobbyist who follows Democratic lawmakers. “That seems to be the easiest way for them to tackle this, because you're reinstating those [Communications Act] Title II protections” the old order adopted “without having to delineate the specific rules.”

House Democratic staff are eyeing a revised non-CRA bill to undo FCC rollback or a bill “that would reinstate the 2015 rules but as a formal change to the statute,” a tech sector lobbyist said. Democrats are going into discussions recognizing a bill likely to be palatable to the caucus and activists stands little chance of passing the Senate or getting President Donald Trump's signature, lobbyists said.

Pallone and others “seem to be playing this close to the vest,” but a bill along the lines of what lobbyists described would “have the benefit of already having the support” of House Democrats who signed onto the discharge petition last year that aimed to force a floor vote on the CRA resolution, said Public Knowledge Senior Policy Counsel Phillip Berenbroick. “That would be a relatively straightforward approach in which the cats have been pre-herded to a large extent.” The Democratic House “can pass such a bill on a party-line vote” with the support of some Republicans, Berenbroick said.

House Commerce ranking member Greg Walden, R-Ore., cautioned that returning to Title II won't get much support among House Republicans. “Title II has really been the hang-up” in trying to reach a legislative compromise, he said. “There's an opportunity to work in a bipartisan way” on rules that bar blocking, throttling, “non-network management, unfair practices” and potentially “even discussion on paid prioritization” restrictions. Walden and multiple senior Republicans previously backed a 2015 draft bill that included an outright ban on paid prioritization, though GOP lawmakers' positions now are more complicated (see 1712200057).

Internet Innovation Alliance honorary Chairman Rick Boucher opposes reinstating Title II as the legal basis for for net neutrality, but said the actual 2015 rules to govern bans on blocking, throttling and other matters could be a “good starting point” for discussions on a compromise bill. Any legislation needs to instead classify broadband as a Communications Act Title I service, said Boucher, a former Democratic House Communications chairman. “There's not a huge amount of difference between” the actual rules included in the FCC's 2010 and 2015 orders, apart from the legal basis. “Either way, you're getting the discussion started,” he said.

Any Democratic-led net neutrality bill should aim to restore the FCC rules “in all aspects, including” Title II authority, said Gigi Sohn of the Georgetown Law Institute for Technology Law and Policy and Benton Foundation. A CRA-style bill is essentially “off the table,” but a statutory restoration of the 2015 rules “would have the same impact. It wouldn't be literally overturning” the rescission order and “it's not as blunt an instrument.” House Commerce's pending net neutrality hearing could set the stage for such a bill by “building the record for reinstatement” of the 2015 rules, Sohn said.

Whither Privacy?

Pallone, Doyle and Welch believe it's unlikely House Commerce will combine work on net neutrality and privacy legislation. “We're going to address privacy but I don't think it's necessarily going to be done together” with net neutrality, Pallone said. “I think those have to be done on separate tracks,” Doyle said.

House Commerce Democratic leaders' lack of interest in combining work on the two issues is shown by their decision to make Alex Hoehn-Saric chief Democratic counsel for all issues before the Communications and Digital Commerce subcommittees, lobbyists said. The committee renamed Digital Commerce Thursday as the House Consumer Protection and Commerce Subcommittee (see 1901100040). Michelle Ash, previous chief Democratic counsel for House Digital Commerce, left that role earlier this month. Hoehn-Saric's leadership of Democratic policy on both subcommittees means aides Lisa Goldman and Gerald Leverich get more day-to-day control over respective operations at Consumer Protection and Communications, lobbyists said.

Combining work on net neutrality and privacy legislation would create a situation “ripe for mischief and delay,” Berenbroick said. “These are both issues that are pretty pressing and a separation of those issues” could make it easier to tackle them efficiently.

Boucher believes it would be beneficial for House Commerce to tackle net neutrality and privacy in a collective bill, but “I don't know that keeping them separate would” make it more difficult to address either issue. “Many of the same parties are concerned with both issues, such as the carriers and edge providers,” but “nothing else would necessarily suggest they need to be in the same bill,” he said. “It's a strategic decision that committee leaders need to make," he said of the “low-hanging fruit, and they're both issues where bipartisan cooperation is possible.”