White House Sees No Need for Net Neutrality Legislation 'at This Point'

“As we have made clear, while we are always willing to work with Congress on any issue, we do not believe at this point legislation is needed in this space,” a White House official told us when asked about possible involvement in Senate net neutrality negotiations.

Both leaders of the Senate Commerce Committee have denied any White House involvement in their negotiation. “Not at the moment, no,” Senate Commerce Committee Chairman John Thune, R-S.D., told us Tuesday of any administration involvement in negotiation between himself and ranking member Bill Nelson, D-Fla., who said the same on Thursday. “If the White House would ease up a little bit and sort of support a legislative solution, it would certainly make things a lot easier," Thune said, warning of “companies talking about cutting back their capital [expenditure] budgets because of the uncertainty” after the FCC’s net neutrality order.

Thune said in January he wanted to legislate with Democrats on net neutrality and has cited an evolution through the negotiation process of a draft bill he issued then, which would codify net neutrality rules while limiting FCC authority. Negotiation stalled in the House but continued in the Senate. Thune foresees a resolution one way or another within two weeks, while Nelson anticipates one before the end of July.

“I really would prefer if the administration would allow Democratic and Republican senators who have been involved in this issue for a long time to work their will,” Senate Communications Subcommittee Chairman Roger Wicker, R-Miss., told us. “It was disappointing to me that the president weighed in so heavily in favor of a viewpoint that had not had a majority support and suddenly the FCC complies lock, stock and barrel, and suddenly Democrats on the committee are giving more support to that than they should.” He and subcommittee ranking member Brian Schatz, D-Hawaii, have been in touch with Thune and Nelson about their negotiations.

President Barack Obama urged the FCC to adopt a net neutrality order that reclassifies broadband as a Communications Act Title II service months before the FCC voted to do so in February. Industry observers see real merit in the Senate negotiations despite the White House objections to legislation -- and one former FCC official even saw signs of promise in the administration's statement.

"It's standard operating procedure for any White House to preserve its negotiating position this early in a legislative process,” said Robert McDowell, a former FCC commissioner now with Wiley Rein. “The important thing to note is that the White House statement has kept the door wide open regarding possible net neutrality legislation.​ Words such as ‘we are always willing to work with Congress’ and ‘...at this point’ are important nuances indicating that if bipartisan compromise legislation lands on the president's desk it will be hard to veto especially because the D.C. Circuit or a future FCC could overturn everything the FCC enacted. Not having new legislation could result in net neutrality proponents having lost everything."

The White House stance hardly “makes any legislative negotiation moot,” said Free Press Policy Director Matt Wood. “But we certainly agree that legislation isn’t necessary. No matter how many times some lawmakers repeat the cable and wireless lobbies talking points on the topic, Title II remains a flexible and technology-neutral law. It’s a forward-looking framework for promoting competition while preserving timeless values. If anyone tries to tell you that strong and vital nondiscrimination protections belong to a bygone era, it’s probably because they want to discriminate against you.”

“It’s unfortunate and short-sighted but not surprising,” said Mayer Brown communications industry attorney Howard Waltzman, former Republican chief telecom counsel for the House Commerce Committee. But Waltzman saw little about the White House objections to dispel his hopes of “the only solution” of legislation: “If you have a bipartisan deal that involves Senators Nelson and Schatz, that gets the 60 votes in the Senate,” Waltzman insisted, suggesting the number may be even higher despite what he acknowledged would likely be some objections from lawmakers on the right and the left, “I don’t think the White House can outright oppose it.” He’s not surprised at the negotiation due to what he called the “unintended consequences of reclassification” and praised the “bipartisan nucleus” at work. “The White House should be involved, but it’s not necessary to have them involved.”

“There’s a real opportunity to fix what might be perceived as a problem -- blocking, lack of transparency, things like that, without moving to a Title II utility-style regulation,” Wicker said of the state of negotiations.“That’s a nonstarter for many of us, and so if the desire is to craft a bill which prevents undesired practices, we can get there. Avoiding the Title II utility-style regulations, which would open up a whole scenario of further utility-style regulations, is what we want to avoid.”

He expressed familiarity with “Title X,” the phrase that Nelson has frequently invoked to refer to a new portion of the Communications Act. “You want to call it Title X, that’s one [name],” Wicker said. “The potential abuses can be addressed if we’ll leave the utility-style regulation alone.”