No Major Changes Expected in Net Neutrality Order; Lobbying Focuses on Democrats

Most ex parte meetings on the net neutrality order have focused on Chairwoman Jessica Rosenworcel and her fellow Democrats Geoffrey Starks and Anna Gomez, with about twice as many meetings as with the Republicans, based on our count. Industry officials said that’s not surprising, saying Commissioners Brendan Carr and Nathan Simington certainly will dissent and have little leverage to seek changes. Commissioners vote Thursday.

Based on an analysis of 89 ex parte filings posted in docket 23-320 between March 1 and Friday, Rosenworcel’s office was busiest with 39 meetings and calls. Starks (35) and Gomez (32) followed. Carr and Simington saw less activity, with 18 and 15, respectively.

While tweaks to the draft order are likely, they will probably break down into two groups, officials said. The first are changes needed to correct the draft, such as the Alarm Industry Communications Committee’s request that the language be changed because it inaccurately reflects the group’s stance on forbearance for Section 275 of the Communications Act (see 2404170030). Other changes will come at the request of the Democratic commissioners, all of whom must be satisfied with the order before it's approved.

One area where change may be most likely is the hotly contested language on 5G network slicing, experts said. Net neutrality advocates suggested tweaks last week (see 2404160055).

“I don’t see anything dramatic happening between now” and Thursday, former Commissioner Michael Copps said Friday. “There are always some little tweaks needed, but ... the item’s focus on basically re-instituting what has already passed court muster will rule out any big surprises.”

Fundamental changes are unlikely, “but there can be clarifications and improvements that matter,” said Jon Peha, Carnegie Mellon University engineering and public policy professor and former FCC chief technologist. Tweaks are hard to predict, he said. “I imagine those are the discussions within the FCC right now.”

Done Deal

The general sense is the draft order is largely a done deal, and lobbying is playing at the edges, aiming at making minor changes in areas such as network slicing and state preemption, a lawyer who has met with the FCC several times as part of the net neutrality proceeding told us. A net neutrality advocate said public interest groups are very unhappy about forbearance on Section 254 of the Communications Act (see 2404190043), but changes are unlikely.

“I don't expect very many changes at all from the draft,” said TechFreedom General Counsel Jim Dunstan. There may be “some clarification on preemption, but not much beyond that,” he said.

When the core of a major order is unlikely to change, often the focus is on meeting with other majority commissioners. These sessions “work the ref” in an attempt to effect slight adjustments, said Larry Spiwak, Phoenix Center president. Meanwhile, meetings with minority commissioners often center on trying to ensure a full, analysis-based dissent, as that can be a useful tool in appealing the order, he added. “The gold standard” for a dissent was then-Commissioner Ajit Pai’s 67-pager to the 2015 net neutrality order, Spiwak argued.

Carr is more active on social media and in the press opposing net neutrality, and it's logical that opponents might gravitate toward lobbying him, Spiwak said.

Carr might be getting slightly more visits because he’s the senior political minority commissioner and has been at the forefront of opposing Title II regulation longer, Free State Foundation President Randolph May said in an email. “On such a major question as this one, it’s certainly worth visiting both commissioners.”

Carr is seen as a champion of the anti-Title II position and the commissioner most likely to argue that position at the open meeting and in public, said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. Having been through net neutrality issues before, Carr may be viewed "as a sort of senior voice in the net neutrality wars,” Kane emailed.

“I think all sides have an interest in getting as much advocacy as possible into the record in preparation for inevitable litigation” Kane said. “It seems likely that partisanship will overwhelm any substantive changes to the draft at this point.”

Asked if his office is pursuing any minor tweaks to the item, Carr in a statement said, "I try to avoid goat rodeos.” Simington didn't comment.

No 'Huge Surprises'

There probably won’t be any “huge surprises,” Public Knowledge Senior Vice President Harold Feld emailed. FCC Democrats want to move now to avoid a Congressional Review Act resolution of disapproval down the road (see 2404180058) if Republicans win control of the House and Senate in November, he said. “That makes it extremely unlikely that there will be anything new introduced at the last minute or changes that would require significant rewriting,” he added.

Even tweaks can prove “significant,” Feld said: “In particular, I expect to see some tightening up of the language around preemption. Both supporters and opponents of the order agree that the scope of preemption as written is confusing, so I expect some clarifying language or examples.”

Lobbying the Democrats “makes sense … to get some tweaks around the edges, but I doubt much of anything will come out of the ex partes,” said Digital Progress Institute President Joel Thayer. The 5G slicing provisions “might be tightened up a bit,” he predicted. But Rosenworcel likely has “a specific vision” for the rules and last-minute lobbying probably won’t change much, he said.

Numerous companies and groups have met with staff for all five commissioners, including the Affordable Broadband Coalition, Altice, CTIA, Meta, NCTA and some of its cable company members, SpaceX, USTelecom and the Wireless ISP Association. Others have focused on the Democratic majority, with Free Press meeting Rosenworcel or a staffer three times and once each with Gomez’s and Starks’ offices.

Barbara van Schewick, director of Stanford University’s Center for Internet and Society -- either by herself or with Public Knowledge and New America’s Open Technology Institute -- met with Rosenworcel’s office thrice, twice with Starks’ and once with Gomez’s. Van Schewick had no meetings with the GOP minority. Our analysis found no interested parties meeting with just Carr or Simington and not the Democrats.