Lawmakers Contemplate Cementing FCC Title II Forbearance in Statute

This legislative route would differ from other GOP responses on the table this year and isn't a widely discussed item. Potential responses considered thus far include the aggressive attack on the net neutrality order through a Congressional Review Act (CRA) resolution of disapproval, the draft net neutrality legislation from GOP Commerce leaders in both chambers, which would prevent FCC reclassification, and the possibility of using the appropriations process to limit agency funding and authority.

Kinzinger, a member of the Commerce Committee, lacks a “definitive timeline” on introducing any such legislation, his spokeswoman said. Cruz spokespeople didn’t comment on whether he intends to follow up his questioning with legislation. Kinzinger's spokeswoman wouldn't say whether Kinzinger plans to back the CRA resolution that Rep. Doug Collins, R-Ga., a Judiciary member, is tentatively planning to introduce next week (see 1504020053), nor would a Collins spokesman. Kinzinger didn't join the 21 Republicans, including Judiciary Committee Chairman Bob Goodlatte, R-Va., and Collins, who called for a CRA resolution in February. He's also not among the 45 GOP co-sponsors of a partisan net neutrality bill from House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn. In 2011, the year he assumed office, Kinzinger backed an unsuccessful CRA resolution attacking the FCC's 2010 net neutrality rules, making a speech to that effect on the House floor.

One former Democratic House staffer told us he sees the idea of forbearance legislation as not great from a public policy standpoint but feasible enough to do through legislation. The FCC’s proposed forbearance is a mess and stands a good chance of failing in court, the ex-staffer judged, pointing to the subsequent scenario of full-blown Title II reclassification and the difficulty of the agency's trying to come back and forbear again. He mentioned the FCC trying to forbear from one sentence in Title II’s Section 254 to claim the order isn't meant to affect broadband contribution to the USF and questioned its ability to withstand real legal scrutiny.

Senior Republicans declined to comment on the idea floated by Kinzinger and Cruz. Senate Commerce Committee Chairman John Thune, R-S.D., is focused on finding a bipartisan alternative to the FCC’s use of Title II, a spokesman for Thune reaffirmed to us this week when asked. Forbearance would be moot under the Thune draft given its limits on FCC use of Title II, although Thune has stressed his draft is open to change and negotiation. Democrats haven't backed that draft but Democratic staffers have continued working with Thune staffers as part of his private stakeholder meetings throughout March. Prior to the net neutrality order’s approval, during a January hearing, Thune weighed in a question to a witness whether Congress should be “prohibiting the FCC from applying the 45 unnecessary sections of Title II to the Internet, including retail rate regulation,” with the exceptions of Sections 201, 202 and 203 -- sections that the Internet Association had said were essential to the net neutrality rules. Public Knowledge President Gene Kimmelman agreed with Thune that perhaps only a “handful” of Title II sections would be relevant but questioned whether it’s appropriate to “wipe those out” for the future.

“The concept of codifying the forbearance is superficially appealing, but has many potential complications,” Andrew Schwartzman, senior counselor at Georgetown University's Institute for Public Representation, told us. “There is considerable danger in tying the Commission's hands. However, there are surely some principles that could receive agreement, such as that there should not be traditional rate regulation or tariffs for broadband.”

The FCC’s order “has stoked legislative interest in legislative fixes in many areas from many directions, from net neutrality, to the FTC common carrier exemption, to forbearance, etc., because the FCC’s Order continues to expose real and serious problems that only Congress can resolve legitimately,” NetCompetition Chairman Scott Cleland emailed. “Legislative ideas, concerns and compromises are only going to increase as lawsuits flood in, collateral damage piles up, and the FCC’s Order transforms from well-scripted rhetoric to the reality of unintended consequences and unrealistic expectations. Momentum for the legitimacy of legislative compromise will only grow, because forcing the most antiquated regulations on the most modern part of the economy will become a fiasco that fewer and fewer legislators will want to defend.” NetCompetition members include CTIA, NCTA and USTelecom.

Wheeler defended the order in letters, sent last month and released Tuesday, to several Democrats in both chambers. “The FCC’s new rules, grounded in strong Title II authority coupled with appropriate forbearance, carry the support of millions of Americans, and are poised to keep the Internet open and free for consumers and innovators for years to come,” Wheeler told lawmakers in one letter. He defended the forbearance from 27 provisions of Title II, “targeted to avoid major issues like rate regulation, tariffing, and network unbundling, which would not be appropriate for the broadband Internet access industry" and "designed to preserve incentives for continued investment in broadband networks,” he said.