Senate Passes Net Neutrality CRA Resolution, but Future Prospects Up for Debate

“We exceeded expectations” by getting three Republican senators to back the CRA measure, putting it well ahead of the potential narrow 50-49 margin some envisioned last week, Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, told reporters: “People didn't think we were going to succeed in the Senate and people certainly didn't think we were going to get three Republicans to vote” for the resolution. Sen. John McCain, R-Ariz., was absent amid brain cancer treatment (see 1805080066 and 1805090065).

Murkowski told reporters she voted yes to “get beyond the politics” that inflamed the net neutrality debate, particularly amid the FCC December vote to rescind some rules. “I'm frustrated with where we are today that we basically have moved forward a measure that the Democrats know probably isn't going to become law,” she said. “Our choice today” was between the old rules and the FCC's rescission order, Kennedy told reporters. “This vote comes down to one thing and one thing only -- the extent to which you trust your cable company. If you trust your cable company, you're going to support” the rescission order, he said.

The three GOP supporters said they want legislation to follow Capitol Hill's focus on the CRA resolution. “I hope that this will encourage” lawmakers to reach a deal on a compromise bill so “Congress, not the FCC decides,” Collins said. “It's unfortunate the legislation didn't come first.” Kennedy touted his sponsorship of the Senate version of the Open Internet Preservation Act (HR-4682/S-2510), which would bar blocking and throttling but includes no ban on paid prioritization. “Everybody in the Senate says we need to do a bill, but nobody's done anything,” he said. “We need to go do a bill and settle this.”

“When are we going to get down to the actual legislation that both sides profess that we need to have?” Murkowski asked: “It's not that difficult,” with the likely best framework stemming from a discussion draft that Senate Commerce Committee Chairman John Thune, R-S.D., then-House Commerce Committee Chairman Fred Upton, R-Mich., and current committee Chairman Greg Walden, R-Ore., wrote in 2015 (see 1506040046). “It doesn't address my issue on the ability to provide for some level of priority critical services” but would still be a good start, she said.

Thune unsuccessfully sought to scuttle the measure and sought a floor vote on his 2015 draft in the form of S-2853. Legislation is "the best way to solve this, not to come up with this bizarre exercise" that "we all know isn't going anywhere," Thune said. "All we're doing is stalling" and "making it more difficult, I think, to get to a solution on this." Negotiations to get the three Republicans on board with the CRA resolution didn't include specific commitments to negotiate on a compromise bill, but “I've always been open to legislating,” Schatz said. “The proper place to consider that is in [Senate Commerce] but [the CRA resolution] is the focus now.”

House Side

Walden didn't discount the possibility some GOP colleagues would defect to support the House CRA resolution but told us it's still unlikely to get a majority vote. Walden said there should also be “a vote on” compromise net neutrality legislation along the lines of his 2015 discussion draft. Walden used that as a starting point for renewed discussions with stakeholders last year (see 1707310066 and 1708070068). “If the Democrats are serious about having legislation codifying a set of rules for the road, then they would allow a vote,” Walden said.

House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., told us before the vote she was confident Republican colleagues won't support the CRA resolution given the existence of HR-4682, which she filed in December. The bill mirrors Walden's 2015 draft but lacks a ban on paid prioritization (see 1712190062 and 1712200057). “Everybody agrees on no blocking and throttling,” she said: There's consensus “a more thoughtful approach” and “a more thorough approach should be taken on paid prioritization.”

House Communications ranking member Mike Doyle, D-Pa., vowed during a news conference to begin a discharge petition Thursday to force a floor vote on the CRA resolution. That would require a minimum of 218 signatories. “We're going to hold people accountable” in November elections based on whether they support the measure, Doyle said. The Senate vote “sets a high standard” for the House to match given no House Republicans currently support the resolution, said Rep. Anna Eshoo, D-Calif. “Maybe they'll open their eyes wide” given the Senate vote, which sends a “strong message to the American people about where their members of Congress stand," she said: "I wouldn't want to be standing” against the 2015 rules.

Officials and lobbyists on all sides agreed in interviews that it remains more difficult for the House to clear the 218-vote majority threshold to pass the CRA resolution than it did for the Senate to pass the measure. They disagreed on exactly how high a hurdle that is given the Senate vote. “There is no deadline for the House to vote” now that the Senate cleared it, “so this could drag on indefinitely” through this Congress, TechFreedom founder Berin Szoka said.

Even the CRA resolution effort that last year abolished FCC ISP privacy rules (see 1706070050 and 1706210059) garnered opposition from 15 House Republicans, “so it's possible” a similar number of GOP supporters of the net neutrality measure could emerge, Szoka said. GOP defections are likely to come short of what's needed to pass. Republicans have a 42-seat majority. “I think we're going to have to see what the public does” now that the Senate has passed the resolution, said Electronic Frontier Foundation Legislative Counsel Ernesto Falcon: “People react once there's some action pending” and public pressure thus far has focused on the Senate rather than the House.

Trump Factor

Many diverged on how Trump would handle the CRA resolution. The White House has been supportive of FCC Chairman Ajit Pai's actions, but “no one” can predict what exactly Trump will do with a policy issue, Szoka said.

Trump's “very unpredictable,” so it's not a given he would oppose, Falcon said. “He seems to act on things that are pending before him in the immediate sense.” There's “no reason to believe anyone in the White House would advise Trump” not to veto the measure, said Competitive Enterprise Institute Regulatory Counsel Ryan Radia: Net neutrality is also the “prototypical issue” on which Trump would likely “defer to the Republican orthodoxy.”

Three of the four sitting FCC commissioners and a wide range of other communications policy stakeholders reacted in statements largely in alignment with their long-standing positions on the net neutrality debate. AT&T, the Telecommunications Industry Association and USTelecom were among the industry entities that expressed disappointment in the result. The Computer & Communications Industry Association, Free Press and the Internet Association were among those that lauded Senate passage.

It's “disappointing that Senate Democrats forced this resolution through by a narrow margin,” said FCC Chairman Ajit Pai. "But ultimately, I'm confident that their effort to reinstate heavy-handed government regulation of the Internet will fail.” The FCC is “focused on policies” aimed at preserving “the free and open Internet,” said Commissioner Brendan Carr: Those actions “are the path to delivering more broadband for more Americans.” Commissioner Jessica Rosenworcel hailed the vote as “a sign that the fight for internet freedom is far from over.”