Likely GOP Threat to Net Neutrality Order Rekindles Legislative Compromise Interest

Capitol Hill Democrats fear the incoming unified GOP government, with control of the White House under President Donald Trump, both congressional chambers and the FCC, stands ready to wipe out the FCC’s net neutrality order (see 1611090034) and potentially other achievements of the agency under Chairman Tom Wheeler, they told us after the recent elections. But some Democrats see potential for bipartisan legislative compromise and believe lawmakers should act fast before the order is potentially undone.

“I think everything’s on the chopping block,” said House Communications Subcommittee ranking member Anna Eshoo, D-Calif., a Wheeler ally who helped usher in his net neutrality order, approved along partisan lines in February 2015.

Some Democrats say legislation is necessary. Senate Commerce Committee Chairman John Thune, R-S.D., and ranking member Bill Nelson, D-Fla., negotiated through much of 2015 on a potential bill, the source of renewed attention. Thune and House GOP counterparts proposed legislatively codifying net neutrality rules in exchange for nixing the reclassification component. House negotiation never took off, but Thune and Nelson kept working at new and private drafts for at least half the year, involving use of a “Title X” placeholder statute applicable to broadband service (see 1506040046). A Verizon lobbyist, speaking on a panel, and former FCC Commissioner Robert McDowell, speaking on C-SPAN’s The Communicators, invoked this Senate negotiation and encouraged congressional action after the elections.

“I thought we should legislate, and I still do,” said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, in an interview. “I broke from the pack when the FCC was deliberating and I continue to believe that the best way to make policy in this space is for the Commerce Committee to assert its jurisdiction and make public policy. What we’ve seen is in the absence of legislative action, that the FTC and FCC will fill the space in telecom generally, and perhaps this’ll provide us an opportunity to start doing policymaking again.”

“I don’t know,” Nelson told us of possibly reviving those negotiations. “It’s too early.”

“Over the last two years, I looked for, but didn’t find, a path toward a bipartisan agreement,” Thune said in a statement. “If the election result creates a change of heart, I’d be open to another conversation about legislation to protect the open internet, update the authorities of the FCC, and take Title II regulation of broadband off the table.” Thune said this summer the Title X ideas also could be incorporated into a telecom law write if Democrats were amenable (see 1608030022).

Schatz called the next few months “very significant” for such negotiation given there will be a window of time before a Republican FCC could be set up and roll back the order. He's “indicating” to Thune his support for legislation, he said: “The presidency is about to change, but I continue to think we should legislate.” Rep. Gene Green, D-Texas, said legislative compromise would make sense now. The Commerce Committee member always opposed Title II and led a faction of Democrats against its usage for broadband. “The FCC did a little bit more than what I felt comfortable with,” said Green. “Congress always has that option.”

Committee Changes

Next Congress also will reshuffle the roles of central players on the House Commerce Committee. Chairman Fred Upton, R-Mich., and Communications Subcommittee Chairman Greg Walden, R-Ore., joined Thune in pushing for a bipartisan open internet compromise. But Upton is hitting his term limit as chairman, as is Walden in his subcommittee role. Walden is vying to lead Commerce, as is senior Commerce member John Shimkus, R-Ill., and former Commerce chairman Joe Barton, R-Texas. They will present their bids to the GOP Steering Committee next week.

Shimkus always backed Upton and Walden’s legislative proposal, sometimes with reluctance. During their pitch for legislation last year, he referred to himself as a “paid prioritization guy” (see 1501210049). Shimkus would prefer to wait and see the makeup of the FCC first before delving into legislation, his spokesman said Monday. Shimkus, who repeatedly stressed his desire for comprehensive telecom overhaul next Congress, also sees the possibility of clearing the air on net neutrality through that vehicle, the spokesman said.

Upton and Walden still seem to indicate “they’d like to see something legislatively out there on net neutrality,” said House Communications Subcommittee Vice Chairman Bob Latta, R-Ohio, rumored as a possible successor to Walden on the subcommittee next Congress. “What Chairman Wheeler did a lot of us really didn’t agree with. I think it’s one of those things that as we go forward, especially with the administration, the president-elect’s looking at.” Latta believes “it’s hard to tell right now until we start finding out the different people they’re putting in place” at the FCC and he remembered the frustrations of Republican Commissioners Ajit Pai and Mike O’Rielly, who join majority control starting in 2017. Neither voted for the open internet order. “A lot of times, we’ve heard them say they don’t get a lot of information when they should,” Latta said. “They haven’t agreed with where Chairman Wheeler’s been going.” He thinks “there’s a chance” for the incoming chair, he said.

Barton issued a series of tweets last week offering his vision to lead House Commerce and urging quick action in the new Congress. "The Internet should not be regulated as a utility," Barton said. "The FCC’s net neutrality rules must be rolled back."

“I don’t think anything’s going to be happening this Congress,” said Green. “From the next Congress, we’ll get a new FCC. The president I’m sure will appoint different folks. Maybe there’s a way we can work things out.”

'Full-Scale Assault'?

There's anxiety among Democrats who supported Wheeler’s telecom positions, they told us. Eshoo questioned whether Trump understands net neutrality. He tweeted about the topic in 2014 but never mentioned it on the campaign trail. “I don’t think the two words ever crossed Donald Trump’s lips,” she said. “I don’t think he knows what it is. But I think the members of his party have never been pleased with it.”

“It’s going to be imperative for us to be on alert that there might be a full-scale assault on it during the Trump era,” Sen. Ed Markey, D-Mass., said in an interview. “That will be something that I will be paying very close attention to.”

Sen. Ron Wyden, D-Ore., another backer of the order, “is committed to defending strict net neutrality, under this administration and the next,” his spokesman said. “It’s the best way to protect consumers and the little guys from being bullied by Big Cable, and ensures Americans have access a wide range of voices, including independently produced content, and not just corporate media. He’s working with other members of Congress and internet freedom groups to prevent a new FCC from caving in to the telecommunications lobby.”

House Commerce Committee ranking member Frank Pallone, D-N.J., slammed any possible rollback, writing on Twitter last week. "Consumers were loud and clear," Pallone said of people's desire for strong net neutrality rules. "GOP efforts to scrap #NetNeutrality protections will only harm consumers and limit choice."

Eshoo didn’t seem to believe there would be a legislative opening despite her fears. In the lame-duck session, lawmakers are in session “for a handful of days” in November and “we’re scheduled to come back for a handful of days in December,” she said. “What you’re talking about is some grand strategy to get some beautiful legislation through. We’re going to be here for five minutes -- it’s not realistic.” Of possible legislation next year, she said, “I don’t know, that’s too far down the road.”