Thune Ready With Legislative Language to Pre-empt FCC's 'Harmful' Title II Path
Net neutrality controversy intensified on the second day of the 114th Congress. Senate Commerce Committee Chairman John Thune, R-S.D., suggested there may, in fact, be a split between Republicans and Democrats on a piece of net neutrality legislation he and ranking member Bill Nelson, D-Fla., have been crafting. Nelson confirmed in an interview Tuesday that such bipartisan collaboration has been underway for weeks and said to stay tuned (see 1501060051). Meanwhile, Democrats reintroduced a partisan bill that would codify strong FCC net neutrality protections, banning paid prioritization.
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“We would love to see Democrats kind of get behind that sort of an approach, but my sense is they’re probably going to be more inclined to wait for the FCC and then to react legislatively,” Thune told reporters at the Capitol Wednesday. “We think it’s important to get out ahead of the FCC to show there’s a better way.” Commerce Committee Republicans are “going to meet about that tomorrow and probably have more to say about it after that,” he added.
A telecom industry lobbyist had suggested in late December that Nelson and Thune differ on timing, with Nelson preferring to wait on legislation until after the rules (see 1412310033). A Nelson spokesman had disputed then that timing is an issue and didn’t comment by our deadline Wednesday. Net neutrality has typically been a partisan issue.
The FCC is expected to release net neutrality rules that involve Communications Act Title II ahead of its Feb. 26 meeting. This Thune legislative proposal has long been rumored as a way to avoid Title II reclassification of broadband. Nelson referred to the idea as “Title X,” apparently describing a new title of the Communications Act that would allow for net neutrality protections without Title II.
Democrats in the Senate and House, meanwhile, reintroduced a bill Wednesday that would ban paid prioritization deals, a key concern in the net neutrality debates. Senate Judiciary Committee ranking member Patrick Leahy, D-Vt., and Rep. Doris Matsui, D-Calif., introduced the Online Competition and Consumer Choice Act last year and have introduced the legislation again. It would ban those deals without making any reference to Title II or other legal authorities. Co-sponsors include Sens. Al Franken, D-Minn.; Martin Heinrich, D-N.M.; Bernie Sanders, I-Vt.; Sheldon Whitehouse, D-R.I.; plus Democratic Reps. Anna Eshoo of California, Jan Schakowsky of Illinois, Mike Honda of California, Tulsi Gabbard of Hawaii, Niki Tsongas of Massachusetts and Mark Takano of California.
The Democrats' bill "would protect consumers and sets out important policy positions that the FCC should adopt in its current consideration of open Internet rules,” Leahy said in a statement. Public Knowledge and the Writers Guild of America, West issued statements praising the legislation.
“There are ways of addressing [a ban on paid prioritization deals], providing the consumer protections that Democrats say they want, short of creating a Title II reclassification heavy regulatory type regime, which is where the FCC’s headed,” Thune said. “If they do this under Title II, it’s going to create all kinds of opportunities for regulatory shenanigans down the road that could be very harmful to innovation and very harmful to consumers. So we think a legislative route is a better way to go and we’ve developed some language that we think addresses a lot of the concerns that Democrats have raised but does it without a heavy regulatory approach that they’re advocating.”
Some Democrats -- including President Barack Obama, Sen. Ed Markey, D-Mass., and Eshoo -- have backed Title II reclassification. But not all have, and observers have suggested there could be a middle ground among Democrats. Reid and other Democrats, including Sen. Maria Cantwell, D-Wash., penned a letter last month to Republican leaders requesting strong net neutrality protections in any telecom rewrite while making no mention of Title II.
A senior Senate Democrat staked out net neutrality as a core issue in the coming Congress. Any “weakening of net neutrality rules … will be met with swift and unified Democratic opposition,” Senate Minority Whip Dick Durbin, D-Ill., said in opening remarks on the Senate floor early Wednesday, speaking in place of Minority Leader Harry Reid, D-Nev., who is recovering from recent injuries.
Sen. Roger Wicker, R-Miss., incoming chairman of the Communications Subcommittee, told us Tuesday that he's actively discussing net neutrality plans with Thune but said he has yet to speak to Nelson.
“What we want to do is create a framework where you’re not faced with endless litigation and uncertainty and therefore discouraging and like putting a wet blanket on investment,” Thune explained. “And that’s the road they’re going down [at the FCC]. If they go down and use Title II, it’s going to get litigated, there are going to be lawsuits filed, and it’s just going to be a tremendous disincentive for people to invest in the broadband area and I think that would be unfortunate.”