House Approves Rate Regulation Ban Despite Democratic Opposition

The House vote was largely along partisan lines. No Republicans voted against the bill, and only five Democrats voted for it: Jim Costa of California; Scott Peters of California; Collin Peterson of Minnesota; Kyrsten Sinema of Arizona; and Albio Sires of New Jersey.

The legislation, which is opposed by FCC Chairman Tom Wheeler, the Obama administration and many Capitol Hill Democrats for what they consider overly broad language, would likely face a tough path beyond the House. Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, dismissed the House's reviving the legislation as a “symbolic act” earlier this year, with no chances of being signed into law (see 1602160056), and a spokesman for Senate Commerce Committee Chairman John Thune, R-S.D., said earlier this year that Commerce “intends to focus only on legislative proposals addressing the FCC’s new rules if they can garner sufficient support to win approval in the full Senate” (see 1602260064). Many Democrats see what they call the broad language of HR-2666 as undermining the net neutrality order. Senate GOP appropriator John Boozman, R-Ark., weighed reviving a rate regulation prohibition rider but also told us he wants to keep working with the FCC and try to make any effort more bipartisan (see 1604070063).

“I’m disappointed that many of my colleagues across the aisle couldn’t support this bill,” Communications Subcommittee Chairman Greg Walden, R-Ore., said on the floor before the vote. “It’s not for lack of trying.” He referred to the amendment successfully incorporated into the bill at Commerce Committee markup as “inspired” by the amendment from Rep. Doris Matsui, D-Calif., making the bill more “targeted,” Walden said. The bill includes some specific provisions to say the bill won't affect some FCC consumer protection authority, but Democrats said the carve-outs fall short and voted against the amendment and measure at committee markup.

“I hope it will soon become the law of the land,” Pai said. “We’re surprised that there’s any opposition to this bill given that the administration has stated on multiple occasions that it is not interested in regulating broadband prices,” said CenturyLink Vice President-Federal Government Affairs David Bartlett. Enacting the bill “will alleviate some [of] the risk to competition and investment created by the FCC's Open Internet Order and in so doing, restore the certainty necessary for providers to increase their investment in new broadband infrastructure,” said CTIA Vice President-Government Affairs Jot Carpenter. The American Cable Association “is hopeful the Senate will soon pass this bill, and the White House will likewise see the wisdom in signing it into law,” President Matt Polka said. Leaders from ACA, CTIA, NCTA, USTelecom and the Wireless Internet Service Providers Association sent House leaders a joint letter Thursday supporting HR-2666. Free Press, New America’s Open Technology Institute and Public Knowledge issued statements slamming the vote and echoing the concerns of Democrats.

House Republicans defeated the two of three Democratic amendments that came up for a vote Friday. Rep. Mike Doyle, D-Pa., didn’t push for consideration of his amendment (see 1604110054) but Rep. Jerry McNerney, D-Calif., did for his amendment that would have added a line saying nothing in the bill would affect FCC authority to act in the public interest. Rep. Ben Ray Lujan, D-N.M., also pushed for his amendment to clarify that nothing in the bill “would prevent the FCC from requiring TV broadcast stations, AM or FM radio broadcast stations, cable operators, direct broadcast satellite service providers, or satellite digital audio radio service providers to upload the public inspection file in a format that is machine-readable, to the extent such station, operator, or provider is required to make material in its public inspection file available on, or upload such material to, an Internet website."

McNerney’s amendment was defeated 179-231 and Lujan’s, 173-231. Walden opposed both, speaking on the House floor. Walden called McNerney’s amendment “a little more insidious” and blasted how “wide open” the term public interest would be. He said Lujan’s amendment is “clumsily worded in terms of the scope and magnitude” on machine readability. “I don’t think the way the amendment is constructed is perhaps what he is seeking,” Walden said, saying amending this bill is the “wrong place” to tackle the issue.

Democrats took to the House floor to criticize the effort and what they considered lack of meaningful negotiation or consideration of alternatives. “This bill is about undermining the FCC’s authority to protect consumers and ensure a free and open Internet for all,” said Communications Subcommittee ranking member Anna Eshoo, D-Calif. HR-2666 is “deceptively simple” but “designed to gut the FCC” due to the broad definition of rate regulation, Commerce Committee ranking member Frank Pallone, D-N.J., said. “There was not a negotiation,” said Pallone, referring to suggestions rebuffed as part of a “one-sided conversation.”

Eshoo lamented a lack of GOP reference to an earlier failed “airtight” amendment from her that would have codified FCC forbearance from broadband rate regulation. Wheeler backed similar legislative reform, and agency officials sent GOP appropriators draft language along those lines on his behalf. “She referred to the term permanent forbearance,” Rep. John Shimkus, R-Ill., said later on the floor. “That is a contradiction of terms.” He called that idea inadequate and emphasized the need to “trust but verify” through HR-2666. People “don’t like that kind of mess,” Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., said of Eshoo’s failed forbearance amendment. “What they like is something very explicit. … What we are doing is helping a federal agency keep their word.” She said the FCC would want to regulate and tax the Internet and set all the rates “and assign priority and value to content.”

Among Republicans praising the legislation were Majority Leader Kevin McCarthy, R-Calif., and Whip Steve Scalise, R-La. “Congress needs to clarify it has no authority to do so,” McCarthy said of rate regulation on the chamber floor. “After seven years of broken promises, I have a hard time believing this administration will follow through. … I can’t imagine why anyone would object.” Scalise agreed, referring to the FCC threat of setting rates and slowing growth. "This initiative blocks unelected bureaucrats in Washington from dictating how people use the Internet," Speaker Paul Ryan, R-Wis., said in a statement about HR-2666.