Hill Republicans Seek Legislation Addressing Net Neutrality, as Democrats Blast Pai

“It’s now time for Republicans and Democrats, internet service providers, edge providers, and the internet community as a whole to come together and work toward a legislative solution that benefits consumers and the future of the internet,” said a joint statement from Thune, Senate Communications Subcommittee Chairman Roger Wicker, R-Miss., House Commerce Committee Chairman Greg Walden, R-Ore., and House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn.

Sen. Mike Lee, R-Utah, a Commerce member, wants to work with Pai “and my colleagues in Congress to craft lasting legislation that maintains an open and dynamic Internet free from government overreach,” he said. He plans to file legislation soon “permanently removing the FCC’s ability to issue net neutrality regulations,” his office said.

Sen. Ted Cruz, R-Texas, wants to work with fellow Commerce members “to develop a long-term legislative solution that updates the outdated Telecommunications Act of 1996, preserves a free and open internet, and gives stability to the companies and users operating within the internet ecosystem,” he said. He called net neutrality “a worthy idea, as originally defined, to protect an open internet,” saying his earlier slam that net neutrality was “Obamacare for the internet” referred to the Title II reclassification.

Sen. Orrin Hatch, R-Utah., said “the best approach to keeping the Internet free and open is to vigorously enforce our nation’s antitrust laws, and for Congress to pass meaningful and targeted legislation to modernize the regulatory framework governing the Internet.”

Thune and Walden pushed a draft 2015 bill that codified net neutrality protections while limiting the use of Title II. Bipartisan negotiation persisted between Thune and Senate Commerce Committee ranking member Bill Nelson, D-Fla., for months that year, and dialogue resumed without much progress this year. But Blackburn said in February she opposes legislating a ban on paid prioritization, as that draft does. She also said she wants to see "where the FCC thinks that they can get with this" before legislating.

Democrats Concerned

No Democrats discussed legislating. They held multiple events to protest Pai’s moves, angrily live tweeted the speech and issued negative statements. They also didn’t endorse -- but didn’t rule out -- Commissioner Mignon Clyburn leaving the commission or avoiding meetings or votes to prevent the three-member commission from having a quorum.

“We know what a Republican net neutrality bill looks like,” Sen. Ed Markey, D-Mass., said on a press call Wednesday, citing the 2015 draft and what he deemed lack of necessary safeguards and protections in it. “I will oppose any legislative efforts that weaken or undermine the open internet order.” He slammed the idea of ISPs following voluntary open internet principles, demanding “enforceable rules” and said to expect “a tsunami of resistance” on the way: “We’re on the right side of history.”

“There isn’t” any possibility of bipartisan open internet legislation “and the reason is I don’t believe anything they say at this point,” House Commerce Committee ranking member Frank Pallone, D-N.J., said during an event at the Capitol. “I don’t believe for one minute there’ll ever be an initiative legislatively.” He said “the well is already poisoned.”

Democrats who previously backed negotiation with Thune didn’t mention legislation in their statements. “Gutting these rules robs Americans of protections that preserve their access to the open and free internet,” said Nelson. “Depriving the FCC of its ongoing, forward-looking oversight of the broadband industry amounts to a dereliction of duty at a time when guaranteeing an open internet is more critical than ever.”

Pai “is making a mistake” with a plan to “give control to big corporations,” said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii. “Everyone should be outraged by Chairman Pai’s proposal.” He was among Hill Democrats including Markey and Sen. Maria Cantwell, D-Wash., repeatedly tweeting during Pai’s afternoon speech. He, like some others, compared the outrage to what began over the Congressional Review Act (CRA) measure that killed the FCC’s ISP privacy rules. “The difference between the privacy CRA and #netneutrality rollback: public comment period,” Schatz tweeted with the hashtag resist. He convened meetings Tuesday with representatives from Free Press, the American Civil Liberties Union, Public Knowledge, Demand Progress, the Internet Association, Engine, USTelecom, CTIA and NCTA to discuss the matter.

Clyburn Pushes Back

Clyburn and a group of House Democrats spoke in support of net neutrality Wednesday at the Capitol. “They want a monopoly,” Pallone said, lamenting Pai’s “flowery language” and saying the Title II rollback is designed to “get rid of net neutrality.” People “are not fooled here,” he said, doubting any legislation would be able to come together “to put net neutrality back in place.” He urged people to call lawmakers and the FCC and stood alongside Reps. Doris Matsui, D-Calif., Yvette Clarke, D-N.Y., Peter Welch, D-Vt., and later Anna Eshoo, D-Calif.

“The FCC’s majority will say to you they support an open internet,” said Clyburn, the one sitting commissioner who voted for the open internet order. “My question to you is -- how do they plan to do so?” The FCC must not take a “back seat” as ISPs “call the shots,” she said. Clyburn said undoing Title II would risk the FCC’s “entire universal service model” and that the FCC might not be “in compliance of the law,” which mandates connecting all Americans. She declined to say whether she would deny the FCC a quorum. “I will fight for the American people,” Clyburn said. She said she would do “everything in my power” to ensure an open internet, she said at one point when asked about denying a quorum.

Wednesday’s actions are “of the swamp and for the swamp,” lamented House Communications Subcommittee ranking member Mike Doyle, D-Pa., at the Capitol event. The 2015 rules were not pulled out of “thin air or based on fake news,” he said. Commerce Committee Democrats will “fight this every step of the way,” he added, expecting more comments than the 4 million from the initial order proceeding. “Instead of 4 million, probably 8 million -- it’s going to be incredible,” Matsui said.

Trump “is turning his back on rural America,” Welch said. "I join with my colleagues in their disappointment and, quite frankly, outrage," Clarke said. “It’s a sad day for the country,” Eshoo said. “The American people were overwhelmingly for this.” Pai “still thinks he’s working for Verizon,” Eshoo said. “He’s not at Verizon any more -- he’s heading up a public agency.”

'Legal Recourse'?

Sen. Richard Blumenthal, D-Conn., speaking on the same call as Markey, cited “legal recourses” if Pai lacks a fact-based docket showing circumstances have changed since the 2015 order. “It had 10 years of evidence,” Blumenthal said. “There is no such fact-based docket now.” Any attempted rollback “in draconian fashion” is “potentially against the law,” Blumenthal warned. “Mobilizing consumers, making them aware of the threat this change in rule would pose to their well-being I think is key to what we’re going to be doing.”

“I would not advise her,” Markey said of Clyburn avoiding voting or appearing at the meeting. “She is in the middle of the battle herself. And it’s a tough choice. And I am sure she is going to make the right judgment.” Markey “will talk to her about what is the best course of action,” he added. “I don’t want to prejudge it.” Blumenthal said such an idea about Clyburn may be only “one part” of a broader strategy. “Obviously this decision is hers to make, but what our focus should probably be is a strategy to stop this potential change.”

“I want to make it clear that we’re not just going to sit idly by and deliver the internet to the big cable companies,” Sen. Ron Wyden, D-Ore., said on the call. He cited concerns with Pai’s permissiveness toward zero rating. Free Press President Craig Aaron, on the call, slammed voluntary industry commitments. He also rejected the idea that Title II hurt ISP investment: “Do not believe these alternative facts.”

“If Chairman Pai has his way with the FCC’s Net Neutrality rules, the FCC will create a two-tiered Internet, allowing Fortune 500 companies to pay for special Internet access,” said Cantwell, a senior Commerce member. Pai “needs to cease his endless assault on internet freedom and net neutrality,” said Rep. Ro Khanna, D-Calif., who represents parts of Silicon Valley. “FCC commissioners should refuse to accept Pai’s proposal and keep the current legal framework that guarantees a free and open internet.” To roll back net neutrality “would destroy the internet as we know it,” said Sen. Al Franken, D-Minn. “The FCC should reject Chairman Pai’s approach,” said Sen. Maggie Hassan, D-N.H., another Commerce member.

“Getting rid of #NetNeutrality = Trump’s corporate takeover of the Internet,” Democratic National Committee Chairman Tom Perez tweeted. “Shame on him for trying to take away the free & open internet.”

Pai “announced a dramatic step in the wrong direction for the future of the internet w/ his plans to unravel net neutrality,” Senate Minority Leader Chuck Schumer, D-N.Y., tweeted. “Chairman Pai’s action will do nothing to invigorate our economy or spark innovation. … I'm confident millions of Americans who weighed in on #OpenInternet will again make their voices heard.” He accused the FCC of “conspiring with industry insiders.” House Speaker Paul Ryan, R-Wis., and Senate Majority Leader Mitch McConnell, R-Ky., lauded Pai’s speech. “Congress is committed to working with the Trump administration to enact policies that protect consumers and ensure Americans have access to a free and open internet,” Ryan said.