Upton, Thune Partner on Net Neutrality 'Rules of the Road'

The House and Senate “working together, have come up with a working proposal” and “plan to begin a public discussion of it this week,” Upton and Thune said in a joint Reuters op-ed Wednesday. “We need unambiguous rules of the road that protect Internet users and can help spur job creation and economic growth. The rules we propose would prohibit blocking and throttling (the selective slowing of data), and also ensure that Internet service providers could not charge a premium to prioritize content delivery.”

“If there are Republicans who share the president's goal of preserving a free and open internet, then we would of course work with them in pursuit of that goal,” White House Press Secretary Josh Earnest told reporters Wednesday during a flight, according to a pool report. In November, President Barack Obama urged the FCC to develop strong net neutrality rules and recommended Title II reclassification.

The GOP leaders judged such legislation “an early priority” of this Congress. “In the coming days, we plan to pursue a public process to draft and enact bipartisan legislation that would protect the open Internet,” they said. “We hope FCC Chairman Tom Wheeler and the public will join Congress in working to build and enact a shared set of principles that will protect Internet users, promote innovation, encourage investment -- and withstand legal challenge.”

Thune has said he wants such legislation to move ahead of the FCC Feb. 26 meeting, where it will consider a net neutrality order that may reclassify broadband as a Title II telecom service. Thune and Upton want “a better way forward” than through Title II, they said. Ex-Capitol Hill staffers told us it’s not likely Congress could move a controversial proposal like this within the weeks ahead of the meeting but say it could have better chances in the months ahead, with more Democrats perhaps joining after the FCC vote (see 1501130057).

House Commerce Committee ranking member Frank Pallone, D-N.J., is open to legislation, though House Communications Subcommittee ranking member Anna Eshoo, D-Calif., doesn’t want any legislation pre-empting the FCC vote, they said in interviews.

Title II Already Works, Free Press Says

“What part of preventing unreasonable discrimination is antiquated or outdated?” emailed Free Press Policy Director Matt Wood, saying that’s the big question for Thune and Upton. “If they've suddenly seen the light and realize that Internet users, businesses, and innovators need these protections, that's a big step forward for lawmakers who've been denying these truths for so long.” Wood said the principles are already in Title II.

Demand Progress, Fight for the Future and Free Press launched 535 websites Wednesday targeting Hill lawmakers, calling them members of either “Team Internet,” “Team Cable” or unknown. “Members of Congress should expect to hear from tens of thousands of constituents in the coming days as Internet users rise up once again in support of strong Net Neutrality rules,” Fight for the Future Campaign Director Evan Greer said. The groups derided the idea of new legislation and praised Title II as the right path.

“Either the FCC can take its chances with reclassification and the net neutrality fight will drag on for many more years, or Congress can pass legislation that clearly gives the FCC narrow authority to address the President's core concerns,” TechFreedom President Berin Szoka said. Democrats such as Senate Commerce ranking member Bill Nelson, D-Fla., Senate Judiciary Committee ranking member Patrick Leahy, D-Vt., and Rep. Doris Matsui, D-Calif., seem to understand this, Szoka said. He cited Nelson’s references to Title X, subject of his coordination with Thune.

Judiciary Committee chairmen are not as eager to pre-empt the FCC and give it new powers. “The Internet doesn’t need an inflexible ‘one-size-fits-all’ government mandate to ensure net neutrality -- and consumers do not need an extra $84 burden added to their annual Internet bill as a result of new net neutrality regulations,” House Judiciary Committee Chairman Bob Goodlatte, R-Va., said. “The key to an open and free Internet lies in strong enforcement of our nation’s antitrust laws." Goodlatte looks forward to working with Thune and Upton "to ensure competition on the Internet while safeguarding consumers,” a House Judiciary aide told us. "Strong and vigilant enforcement of the antitrust laws is an effective tool to protect net neutrality principles.”

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, predicted in an interview last week that Congress would act only after new FCC rules (see 1501060051). His spokespeople didn’t comment Wednesday.

Resolution Necessary Before Rewrite?

Panelists at a Hill event hosted by NetCompetition -- whose members include major ISPs and associations like CTIA, NCTA and USTelecom -- spoke in favor of possible net neutrality legislation. They said that may be the only chance to avoid net neutrality blowing up any Communications Act update, which Republicans have embarked on.

“If network neutrality descends on the Congress,” warned Internet Innovation Alliance honorary co-chair Rick Boucher, former Democratic chairman of the House Communications Subcommittee, “I think you can put the larger reform effort up on the shelf.” The alliance’s members include AT&T. Boucher called net neutrality legislation “an obvious opportunity” and backs “a narrow, free-standing bill that simply requires the FCC to repromulgate the 2010 order.” He suspects the FCC will reclassify and will provoke intense Hill partisanship: “Congress is going to have a debate like ... you never saw,” Boucher said, a debate that will “take all the oxygen out of the room” and is “really going to destroy that opportunity” for a telecom rewrite.

Reclassification is “going to really distract Congress,” agreed Wiley Rein attorney Rob McDowell, former Republican FCC commissioner. “The FCC really does need to hit the pause button on what it’s about to do with Title II.” McDowell opposes Title II, calling it “so powerful and pervasive” and comparing it to having “a little bit of Ebola.” Minority Media and Telecommunications Council Vice President Nicol Turner-Lee also warned against Title II and feared a “quagmire” ahead going down that path. “If we’re going to give the FCC this authority over net neutrality,” said Free State Foundation President Randolph May, who favors relying on antitrust law to address net neutrality, “I’d like to see as part of it some higher standard of showing before the FCC embarks on prohibiting certain activity.”