Democrats Eye Net Neutrality Bill Options

Democrats are eager to leverage their newfound unified control of Congress to advance their preferred form of net neutrality legislation, after more than a decade in which conditions in one or both chambers inhibited their path. Some advocates believe lawmakers should move beyond simply codifying FCC-rescinded 2015 rules into statute. Opponents of bringing back those rules believe Democrats’ narrow margins in both chambers preclude them from enacting a measure during this Congress.

Sen. Ed Markey, D-Mass., and House Communications Subcommittee Chairman Mike Doyle, D-Pa., separately told us they haven’t set a timeline for refiling their Save the Internet Act (see 2103020057). The bill as filed in 2019 would nullify FCC rescission of the Communications Act Title II rules and retroactively restore reclassification of broadband as a such a common-carrier service (see 1903060077). The House passed the measure in 2019 (see 1906110038); it got no Senate vote.

“We’re going to” refile the Save the Internet Act “eventually,” and finalizing the House Commerce Committee’s portion of the coming infrastructure legislative package is likely to take precedence for panel Democrats (see 2103220063), Doyle said. He said the committee’s focus on Communications Decency Act Section 230 revamp proposals (see 2103250069) took up his attention before the recess ending the week of April 12. “I can’t tell you with any specifics what we may or may not do differently” in this Congress’ version because work on the measure remains in its early stages, Doyle said.

“We’ve got a new” Democratic majority at the FCC, likely coming later this year, that’s expected to again shift net neutrality regulation, Doyle said. “If we can get something into statute” that resolves the “pingponging that happens” every time control of the White House shifts parties, “that would be desirable,” he continued. “It’s tough to do” that even with Democrats controlling both chambers because the 60-vote hurdle to invoke cloture in the Senate is difficult to clear amid strong GOP opposition.

Rep. Anna Eshoo, D-Calif., told us she intends to work with Markey and Doyle again on the Save the Internet Act. She also wants to work with President Joe Biden’s administration “to determine the best path forward." She wants to “see what happens” once Democrats formally regain a majority at the FCC. Lawmakers “don’t want to box in” acting Chairwoman Jessica Rosenworcel and potentially force her to “run to the right of the Democratic caucus” on net neutrality during a potential Senate reconfirmation battle later this year (see 2103020049), said a telecom lobbyist who follows Democratic talks.

California Factor

Markey is hopeful the start of California’s enforcement of its net neutrality law last week will spur Congress to reach a national compromise in Democrats’ favor. “What’s happening in California is a forecast of what has to happen” federally, Markey said. “I think that’s going to be very helpful in ensuring we produce this year at the FCC and out of Congress a fully effective net neutrality law.” U.S. District Court in Sacramento denied ISPs’ request for a preliminary injunction to block California’s law from going into effect while their lawsuit progresses (see 2102230074).

“What people really need to hear” once Markey and Doyle refile the Save the internet Act “is what’s transpired in the last couple years on pricing and instances where people feel there has been throttling” after the FCC deregulation, said Senate Commerce Committee Chair Maria Cantwell, D-Wash. “We need to look into” how California’s law changes the regulatory landscape, too, she said in an interview.

Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., told us he sees net neutrality legislation as part of a broader “modernization of rules that were developed” in the Telecom Act. It’s going to be “incumbent” on the Senate to "bring about the changes needed” to carry communications statute into this century, he said. “That’s what you’re hearing from many of our colleagues who are looking at every facet of what that act should look like and feel like, but most importantly how it interfaces with people across America.” Markey, as an original leader of the 1996 law, should be a leader in revamping it, Lujan said.

The 2019 Save the Internet Act was “a very clever idea,” but “it’s not the only way to” bring back stronger net neutrality protections, said Free Press Vice President-Policy Matt Wood. “The further we get away from” the FCC’s rule rollback, “the notion of turning back on the framework might still be logical, but there’s obviously other ways one could go about doing that.” Some advocates propose that a revised version of the bill adopt some language from the California law, lobbyists said. The statute goes beyond the 2015 rules by barring zero rating, along with blocking, throttling and paid prioritization.

Wild Cards

Markey and other Democrats noted a desire for bipartisan support for any net neutrality measure they seek to advance. “That’s certainly our goal,” Markey said. He and others said efforts to court Republicans begin with the three who supported (see 1805160064) a 2018 Congressional Review Act resolution aimed at reversing the rescission: Susan Collins of Maine, John Kennedy of Louisiana and Lisa Murkowski of Alaska.

Collins, Kennedy and Murkowski told us they’re undecided now on whether to back the Save the Internet Act or another net neutrality measure. They remain the three most likely -- and perhaps only -- Senate Republicans willing to support the measure, lobbyists said. That would leave net neutrality backers well below the cloture threshold. That calculus could change if Senate Democrats unify behind killing or substantially weakening the filibuster.

“I haven’t stopped to do research on what’s happened between” the 2018 CRA vote and now, “and I would want to do that” before making any decisions on supporting future legislation, Kennedy said. “There will come a time when we can trust all of our ISPs, but my thinking last time was that we’re not there yet. We just don’t have enough internet and broadband access across the country and enough competition. That was part of my concern then.”

“I’d have to see the specifics of” the coming bill before committing to support it, Collins said. “I really haven’t engaged on” net neutrality issues lately, Murkowski said: “I don’t know the details yet of what" Markey "is proposing” for the renewed bill.

Supporters aren’t even assured of unified Democratic support for a net neutrality bill, lobbyists said: Sen. Kyrsten Sinema of Arizona remains the Democrat most likely not to support the Save the Internet Act. Last Congress, she formed a working group with then-Senate Commerce Chairman Roger Wicker, R-Miss., to write a bipartisan net neutrality measure (see 1903120078). Sinema’s office didn’t comment now.

GOP Concerns

Wicker, now Commerce ranking member, would “like to” restart that working group with Sinema and others, after putting it on hiatus last year (see 2010290001). Conditions for a compromise would be better “if Republicans had the majority” in the Senate, he said in an interview. “Unless our friends on the other side want to get involved in rate setting, which I oppose, I fail to see the problem” that Democrats seek to address by again changing the regulatory landscape. Legislation seeking to bring back reclassification “seems like a solution in search of a problem,” given perceptions that U.S. networks have performed well over during the COVID-19 pandemic, Wicker said.

“There won’t be the votes” in the Senate to invoke cloture on any legislation resembling the 2019 Save the Internet Act, said Communications ranking member John Thune, R-S.D. “We do need to legislate on net neutrality, but probably not in the way that Markey wants to go.” California’s enforcement of its law may “put pressure on” lawmakers to reach a deal, Thune said. Many Republicans “could agree with a certain set of things that Democrats might agree with as well,” but he thinks they will draw the line at any bill that appears to be a “pretty partisan solution.”

House Communications ranking member Bob Latta of Ohio told us he and other Republicans are “looking at” refiling their own trio of net neutrality measures (see 1902070056) as a counter to any version of the Save the Internet Act that Democrats bow. Latta’s Open Internet Act mirrors a 2010 draft measure pushed by then-House Commerce Chairman Henry Waxman, D-Calif., to enact net neutrality rules with broadband classified as a Communications Act Title I information service (see 1012070091).

“It would not surprise me at all to see” Democrats react to the California law by attempting to enact a “Wheeler effort-plus” bill that reinstates the 2015 FCC rules backed by then-Chairman Tom Wheeler “and add other things to it,” Republican former Commissioner Mike O’Rielly told us. “Even [Wheeler] was cognizant of the need for preemption, so having six or seven different” state-level net neutrality laws “made no sense, so it’s something that’s got to be fixed in some capacity.”

Democrats have begun grappling with how to address the California law in a national debate, given expectations that Republicans will use the statute as an argument against any similar federal legislation, lobbyists told us. Republicans are eyeing how to highlight the Department of Veterans Affairs’ review on whether California’s law negatively affects VA partnerships with wireless carriers to help veterans “with limited data plans connect with their healthcare services” (see 2103250027).