Hill Republicans Tout Net Neutrality Bills; Fortenberry Considers Alternative
House Communications Subcommittee Republican leaders highlighted to us a trio of net neutrality bills introduced earlier this month (see 1902070056) as their best opening argument in negotiations with Democrats on a compromise. A co-sponsor of another past GOP-backed bill is debating whether to reintroduce the measure. One of the three current Republican-led measures -- the Promoting Internet Freedom and Innovation Act (HR-1096) -- got particular attention because it mirrors a Democrat-backed Washington state law that restored net neutrality protections in the FCC's rescinded 2015 rules for state-level purposes (see 1802280027). Top House Communications Democrats, working on their own legislation, gave a tepid response to the GOP proposals because they avoid using Communications Act Title II language as a legal basis for future rules.
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Rep. Jeff Fortenberry, R-Neb., who co-sponsored the 21st Century Internet Act last year, is considering whether to refile it this Congress. The bill, filed by then-Rep. Mike Coffman, R-Colo., would have codified a paid prioritization ban and other rules, and given the FCC authority to regulate ISPs on “unfair and deceptive acts or practices.” It would have barred rate regulation for broadband services and set up ISP transparency rules (see 1807170048).
Fortenberry said he delayed a decision on the measure because his House Appropriations Committee work took precedence since the beginning of the Congress, given the 35-day partial government shutdown and the more recent success at averting an additional shuttering (see 1902150055). “There is widespread agreement” on the need to codify the core rules, so Coffman's bill appeared to be “a reasonable way forward to allow innovation in the industry and protect the dynamic nature of the internet,” Fortenberry said. “But we were outliers; we were actually trying to broker something that made sense to address the concerns of many Americans and make sure the proper regulator was in place while also not stifling innovation.”
“I don't think it's necessary” for the Republicans to consider filing other potential legislative proposals like the 21st Century Internet Act given caucus members' current three proposals, said House Commerce Committee ranking member Greg Walden, R-Ore. His HR-1101 would set up rules, including a ban on paid prioritization, while barring the FCC from using Telecom Act Section 706 as a legal basis. The language reflects the text of the 2015 draft net neutrality bill Walden and other senior Republicans previously backed (see 1702130044).
“As long as we don't get into completely overregulating the market like Title II would do,” Republicans are relatively willing to reach a legislative compromise, Walden told us. “I'm not wedded exactly to any one of the three” bills the GOP lawmakers introduced, but all are acceptable options. “We haven't heard back” from Democrats, and “we're waiting for the phone to ring,” he said.
“What we want to do is sit down” with Democrats “and come up with a good piece of legislation,” said House Communications ranking member Bob Latta, R-Ohio. “I think the legislation” the Republicans introduced this month forms a good basis for talks because they contain basic net neutrality principles “we all agree on,” like bans on blocking and throttling and language on ISP transparency. Latta's Open Internet Act (HR-1006) mirrors a 2010 draft measure pushed by then-House Commerce Chairman Henry Waxman, D-Calif., to enact net neutrality rules with classification of broadband as a Title I information service (see 1012070091).
Washington State
House Consumer Protection Subcommittee ranking member Cathy McMorris Rodgers, R-Wash., told us she chose to pattern HR-1096 on the Washington state law because it was “supported in a bipartisan fashion” and “made it clear it addressed” core net neutrality rules and the need for “transparency that we all agree needs to happen.” If Democrats “are really interested in a solution, they should seriously look at this” legislation, she said.
State Rep. Drew Hansen (D), the state law's lead sponsor, told us McMorris Rodgers and other Capitol Hill Republicans didn't consult him before HR-1096's introduction, but “we are delighted that they believe they should follow the lead of Washington state at the national level.” The core net neutrality rules included in the statute “worked quite well at the national level” as part of past FCC rules “and I don't see any reason why Congress couldn't also codify those rules” in a national statute, he said. “You just need to watch to make sure those core protections are still there as the bill moves through the process and don't get watered down.”
Washington wasn't aiming to enact a law with an eye to preserving any of the intricacies of Communications Act Title I, Title II or other federal telecom statutes but instead drew from “the state's broad consumer protection authority,” Hansen said. “As a state, we are able to pass laws” drawing on that authority “without wading into this complicated, and for our purposes unnecessary, debate over the exact structure of federal regulation.” HR-1096, published Saturday, uses Title I as a legal basis.
It will be important to monitor how HR-1096 ultimately handles replacing the Washington law's consumer protection enforcement authority with a federal equivalent, said National Regulatory Research Institute Telecom Principal Sherry Lichtenberg. The state statute allows authorities to swiftly investigate and act on consumers' complaints about ISPs, but “I don't know that a national law could do that” under the current balance of net neutrality authority. The 2015 rules' rescission removed FCC authority to do a similar level of investigation into net neutrality violations, placing the burden on the FTC.
Dueling Pathways
Public Knowledge Senior Policy Counsel Phillip Berenbroick and other supporters of the 2015 rules called HR-1096 no more of a viable counterproposal than the other two GOP bills.
Washington state adopted its law “shortly after the FCC voted to repeal” its rules and it was widely viewed as “more of a stopgap,” Berenbroick said. “Folks in the state probably decided that was the right course but that's different than what the right policy at the federal level is.” California's law is “the gold standard and most folks who have been working on net neutrality” issues for a long time believe “it's a nonstarter to essentially tell the people of California we're now going to take away the consumer protections your state has adopted,” he said.
Others believe HR-1096 has more national viability. “It is pretty much the standard language that we've seen in other places,” Lichtenberg said. “The disclosure requirements seem like some of the better” sets of rules because “it says that there needs to be enough information for the consumer to make a reasonable choice.” The Washington law had broad support from state Democrats, including Gov. Jay Inslee, and “while the ISPs don't love it, they're comfortable with it,” said a communications sector lobbyist who follows Hill Democrats.
Editor's note: This is Part II of a two-part series on congressional approaches to net neutrality legislation. Part I focused on Democrats' plans (see 1902220001).