Republicans Push Democrats To Come to the Table on Net Neutrality Legislation

Republicans circulated net neutrality draft legislation last month, hoping to codify net neutrality principles while cutting into the FCC’s ability to use Title II or Telecom Act Section 706.

“Let’s talk about how we can work together to solve the problem and end this uncertainty,” said House Communications Subcommittee Chairman Greg Walden, R-Ore., in his opening statement. “The door is open.” Commerce Committee Chairman Fred Upton, R-Mich., is “both surprised and disappointed that we haven’t yet been able to engage in a negotiation,” he said. “We’ve actually said we’re not going to do a markup until we see what the FCC does,” Walden said later to Public Knowledge President Gene Kimmelman.

“The game is not over in terms the legislative dance,” Walden told reporters after the hearing, predicting a possible court injunction stopping the FCC from executing the order. “Hopefully the White House would allow more cooperation on the legislative front.” President Barack Obama, a Title II backer, “has prevented the Democrats from working with us,” Walden said.

“We have to wait to see what the FCC actually puts forward,” Walden said. “We don’t know the timeline when we’ll see regulations. My understanding is that the 2010 Open Internet order took roughly 10 months before it was made public.” But he suspects pressure will make the agency get this order out more quickly, he said: “It’s clear our draft legislation can be the vehicle -- and the only vehicle -- to give legal certainty and protection on the Internet for the principles the president talked about, my colleagues on both sides of the aisle have talked about, to protect consumers.”

Bicameral GOP Concern

Upton and House Oversight Committee Chairman Jason Chaffetz, R-Utah, issued a joint statement Wednesday outlining “disappointment” that Wheeler wouldn’t testify. “After hearing from over four million Americans on such an important topic to our economic and cultural future, it's striking that when Congress seeks transparency, Chairman Wheeler opts against it,” they said. “The last time a rule of this magnitude was voted on by the FCC, then-Senator Obama was motivated to call for transparency at the commission."

Chaffetz is investigating the White House’s influence over net neutrality and requested from the FCC relevant communications with the administration. His deadline was Friday, and the FCC has still not supplied those documents but is working with the committee, a Chaffetz spokeswoman said. The FCC did provide unredacted copies of the emails it had sought in a second request Friday (see 1502200049), the committee spokeswoman added. Chaffetz followed up with Wheeler in another letter Wednesday, expressing disappointment and asking for copies of all preservation notices relating to his inquiry by Friday. Chaffetz requested briefings by March 11 from the Wireline and Wireless Bureau chiefs and from agency officials who worked on the net neutrality order.

“Any claims that Republicans have conceded or surrendered to the Obama administration’s power grab of the Internet through FCC action is a mischaracterization of our ongoing efforts,” said Senate Commerce Committee Chairman John Thune, R-S.D., in a statement Tuesday. “One way or another, I am committed to moving a legislative solution, preferably bipartisan, to stop monopoly-era phone regulations that harm Internet consumers and innovation.” Thune initially had told us he wanted to move legislation ahead of the FCC’s vote, which failed as no Democrats were willing to publicly join him following what he saw as pressure from the administration and FCC. Thune plans private net neutrality stakeholder sessions in March. Sen. Jerry Moran, R-Kan., blasted the FCC's “profound lack of transparency” in his own statement, saying the FCC leaves Congress with “no choice but to consider all options to scrutinize these rules.”

Senate Democrats dismissed legislation. One key is beating “Republicans who are intent on attacking the FCC’s rules” and putting together legislation to “dismantle” the rules, Sen. Al Franken, D-Minn., said during a call with Democracy for America Tuesday. Franken championed Wheeler’s order: “They’re not going to set rates, they’re not going to do that kind of thing,” he said.

Senate Judiciary Committee ranking member Patrick Leahy, D-Vt., joined with Sen. Richard Blumenthal, D-Conn., for a Slate op-ed lambasting draft legislation that “would not adequately protect consumers and small businesses online -- nor would it provide the FCC the tools it needs to ensure that broadband service remains accessible to everyone.” Leahy and Blumenthal predicted the draft bill would yield “an avalanche of litigation” whenever the agency tried to protect the open Internet.

Democrats Defend Title II

House Democrats strongly backed FCC action rather than legislation. Subcommittee ranking member Anna Eshoo, D-Calif., read a Feb. 18 “really eloquent” letter from Engine Advocacy to the FCC in support of Wheeler’s order rather than delivering an opening statement. “There are problems in the legislation because there’s no follow-up with the agency of jurisdiction,” Eshoo said. “There is a distance to go, and this really needs to be addressed if there’s ever really any hope.” Walden disagreed: “The FCC would have complete and total enforcement capability to enforce the law.”

“Now is not that time,” House Commerce Committee ranking member Frank Pallone, D-N.J., said, despite willingness to “enshrine” the FCC rules into law. “Now is the time for the FCC to do its work.” Pallone was “baffled” at the hearing, citing the subcommittee's Jan. 21 net neutrality hearing, he said, urging it to do more than “just obsess over one topic.”

“Once the Commission acts, some may be freed up to be more engaged legislatively,” Walden told reporters of Democrats, citing December meetings with them. He doesn’t see any change in leverage for either party after the FCC votes. He warned of “international implications” of Title II and other issues such as losing FTC "authority over bad behavior; it defaults all to the FCC now.”

The White House consumer privacy bill, which Pallone said is coming very soon, also worried Democrats. Pallone hasn’t seen it yet but industry has, he said. In considering potential “problems,” Pallone emphasized how some companies would not be covered by Title II Section 222. “I certainly hope what you have heard is not accurate,” Kimmelman told him. Doyle also pressed Kimmelman on the implications of the FCC's losing that authority over privacy. Kimmelman called it a “very serious concern” if true, and pointed out that people rely on communications networks to protect their privacy. “It would be extremely unfortunate if that were thrown out the window at this moment,” Kimmelman said.

Some Democrats denied reclassification would chill investment. “Mr. Downes, you’re really lathered up about this,” Eshoo told Larry Downes, one witness with the Georgetown Center for Business and Public Policy. She cited T-Mobile's downplaying implications of Title II on investment and similar comments from Sprint. “It’s a very heavy charge that’s been made,” Eshoo said. “Can you reconcile it? Do you have proof? Is there lack of investment? … Do you have information from the New York Stock Exchange or others?” Rep. Mike Doyle, D-Pa., said he looked at telecom stocks that morning: “Clearly investors don’t think the sky is falling either.”

“Now it seems the GOP wants to sue on everything,” Pallone lamented, arguing they should not act based on potential Title II litigation.

Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., pressed on potential taxes and fees that could follow reclassification. Kimmelman told Blackburn he doesn’t expect the order will bring about new fees, due to its forbearance. Doyle dismissed the figure about billions in taxes as “debunked.”