Net Neutrality Ruling Could Stir Legislation in Right Scenario, Lawmakers Say

“I always thought it would be like March,” House Communications Subcommittee Chairman Greg Walden, R-Ore., said of the pending court decision. He's familiar with the Washington telecom ritual of checking for rulings Tuesdays and Fridays, the days the D.C. Circuit releases decisions. “It didn’t come today, but let’s see if it’s Friday,” Senate Commerce Committee ranking member Bill Nelson, D-Fla., remarked earlier this week.

GOP counsel David Redl, who works for Walden, had envisioned three periods for the year initially -- pre-D.C. Circuit ruling, post-ruling and the possible lame-duck session. “I don’t think anyone believed the pre-D.C. Circuit window would last this long,” Redl said Wednesday during an FCBA event.

Net neutrality is highly partisan on Capitol Hill. Republicans slammed the Communications Act Title II reclassification of the agency’s February 2015 open Internet order and many questioned a need for any FCC rules. Republicans and Democrats in both chambers introduced legislation in recent years seen as intended for messaging purposes only, with Democrats upholding net neutrality principles and Republican bills proposing to limit reclassification or curbing the order. Last year, some Republicans, including Walden and Senate Commerce Committee Chairman John Thune, R-S.D., proposed a bipartisan compromise involving no Title II in exchange for a codification of net neutrality rules. House negotiation never took off, but Thune and Nelson privately negotiated for much of last year on draft legislation that was never released. Last month during the INTX show, Thune telecom policy director David Quinalty said the ruling could prod Congress back into legislative action (see 1605160055).

Legislative Scenario?

“If the court rules that the FCC does not have the legal authority to regulate mobile broadband as a Title II service, Congress should legislate to ensure all broadband consumers are equally protected regardless of the technology they use,” ITTA President Genny Morelli said. “You can’t have a marketplace in which there is such a disparity in regulatory treatment between mobile broadband and wired broadband services.”

Lawmakers say any congressional reaction will depend on the nuance of the ruling, which could take various different forms. Walden immediately displayed awareness of some potential complicated types of rulings, such as one that would strike down Title II’s applicability to wireless services but uphold Title II for wireline. FCC Chairman Tom Wheeler has said he’s confident the D.C. Circuit will uphold his order.

“No, I think that’s part of why we’re waiting to see what the court says,” said Walden, receptive to the idea that Congress would have time to react if sufficient consensus were reached. “We’ll be back in September. … We’re prepared. It’s not that we haven’t been putting together some ideas of what to do if, and or but. We’re well aware sort of the range of options. We’re just waiting to see what the court says. We believe they’ve overstepped their bounds. The court certainly has developed a reputation of pointing out where the FCC has not complied with the statutes, where it’s overstepped its authority, so we’re interested to see what they say in this particular issue.”

“Remains to be seen,” Thune said of possible Hill reactions depending on the ruling. “We’re anxious to see it but obviously, as you know, I’ve expressed a lot of concerns about where they’ve been going, the direction they’ve been headed with this whole issue since Wheeler got over there and that hasn’t changed. We’ll make some judgments and decisions when we see it.” He acknowledged that the ruling is coming late in the year in terms of Congress’ remaining days.

“I’m always interested in this, but I think this is one of those things where we’re going to have to wait and see what the court says and then determine what kind of reaction is necessary, if a reaction is necessary,” said Sen. Roy Blunt, R-Mo. “It’s an important issue but I do think the court has taken it off the top line until we see what the courts say. I mean, we wrote letters on this to the FCC, that Title II was not designed to apply, there’s a big history on this, and I think the next step is to wait.” He deferred to Thune on legislative timing.

“Let’s see what the ruling says, and then I can tell you if we can get everybody together,” Nelson said, not ruling out legislative action on account of timing: “There’s going to be a lot of stuff done in the lame duck session.”

Walden couldn’t say whether September or the potential lame duck may be more likely times for congressional action, were it deemed necessary. “It’s too hard to say at this point,” Walden said. "We don’t even know if we’ll have a lame duck. But again, I think people are pretty well versed in the issues. We’ll see what the court says, and then we’ll proceed prudently.”

Doubts, Challenges

“It is late in the year,” Rep. Doris Matsui, D-Calif., said. “Honestly we hadn’t even thought about it recently. It’s all sort of coasting along right now. … Whatever way it comes out, we’ll have to think about it, you know what I mean? We can go look at it different kinds of ways. I just really feel at this point in time there’s not enough time to really respond.”

House Communications Subcommittee ranking member Anna Eshoo, D-Calif., cautioned that net neutrality opponents maintain an eagerness to undermine the order. “There’s always room for mischief here, and there are many detractors and they’ll find something, some way to try to throw sand in the gears,” Eshoo, a strong defender of the Title II order, told us. “The Republicans are literally and figuratively running out of time, on many fronts.”

New America Open Technology Institute policy counsel Josh Stager also pointed to potential threats in any legislative response to a court ruling. “Since oral argument in December, net neutrality opponents have clearly been laying the groundwork in Congress for a legislative response,” said Stager, a defender of the order and former Senate staffer. “They don't seem optimistic about their chances at the D.C. Circuit, but the political window to pass any legislation this year is rapidly closing. And it's unclear why Congress would need to intervene given that the FCC has clear authority to fix any procedural problems the court might find. The decision could go any number of ways, but the American people have made clear they don't want Congress undermining net neutrality.”

“Legislatively when you look at it time-wise, it’s going to be tight because there’s only going to be so many committee days,” said House Communications Subcommittee Vice Chairman Bob Latta, R-Ohio. “Looking at our calendar right now, how many days are out. … That’s the thing. If you look at the lame duck, that would be it if there would be any type of possibility. It really comes down to timing. Right now I have not heard from my side discussion, and I haven’t talked to Greg [Walden] and I have not heard about timing, if there would be.” Legislating net neutrality in general “is very difficult,” Latta said, considering the possibilities of “if you're starting from scratch” or “if you can find something out there that’s coming back.”

Lawmakers always struggle in knowing what a court will do: “You never know when the storm’s going to hit,” Latta added. “It’s going to be very, very difficult.”