Hill Democrats Tepid on GOP Net Neutrality Bills Amid Parties' Title II Entrenchment
Majority House Communications Subcommittee Democrats are largely signaling initial disinterest in pursuing any of the three net neutrality bills House Commerce Committee Republicans floated earlier this month (see 1902070056). As Democratic leaders continue to decide what to include in their own legislation, lawmakers told us they hold a range of positions on whether a final bill must include the Communications Act Title II language that served as a legal basis for the FCC's rescinded 2015 rules. A full committee hearing earlier this month on net neutrality underscored the continuing divide between Democrats and Republicans over using Title II as an underpinning for future rules.
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Commerce ranking member Greg Walden, R-Ore., and two other committee leaders behind the GOP proposals -- House Communications ranking member Bob Latta, R-Ohio, and House Consumer Protection Subcommittee ranking member Cathy McMorris Rodgers, R-Wash. -- urged committee Democrats Thursday night to “work with us” on a legislative compromise. Latta's Open Internet Act (HR-1006) mirrors a 2010 draft measure pushed by then-House Commerce Chairman Henry Waxman, D-Calif., to enact net neutrality rules with classification of broadband as a Title I information service (see 1012070091).
Lawmakers haven't released text for the other GOP bills, but the measures' language has been circulating among some communications sector interests. McMorris Rodgers' Promoting Internet Freedom and Innovation Act (HR-1096) mirrors a Washington state law, which restored net neutrality protections in the FCC's rescinded rules for state-level purposes (see 1802280027), including a paid prioritization ban. Walden's HR-1101 would set up rules, including a ban on paid prioritization, while barring the FCC from using Telecom Act Section 706 as a legal basis. The language reflects the text of the 2015 draft net neutrality bill Walden and other senior Republicans previously backed (see 1702130044).
The bills "are realistic avenues to consensus" and "not simply discussion drafts nor procedural measures to negate or reinstate past rules," the GOP lawmakers said in a letter to House Commerce Chairman Frank Pallone, D-N.J., and House Communications Chairman Mike Doyle, D-Pa. "Reject the special interest groups who insist on Title II or nothing. Their approach will not lead to bipartisan legislation that [President Donald Trump] would sign into law." A legislative compromise “is a job that we can get done” given the committee's past “bipartisan cooperation” to pass the 1996 Telecom Act, the Republicans recommended.
Priorities
House Commerce Democrats are “going to get around” to filing their own net neutrality legislation, as will Senate-side Democrats, Doyle told us ahead of the weeklong Presidents Day recess. Sen. Ed Markey, D-Mass., has said he is leading work on the Senate bill but hasn't given any details when pressed by reporters (see 1902010046). The measure is expected to include language that would restore Title II classification and the broad contours of the 2015 rules (see 1901290032). Some House Democrats have likewise been exploring potential legislation that would put into statute broad contours of the now-rescinded rules (see 1901100001).
“At some point, there will be room for talks” with Republicans, but “we didn't know anything about” HR-1006, HR-1096 and HR-1101 before the GOP leaders announced them earlier this month, Doyle said. “There was no consultation, there was no negotiation.” Republicans appear to be aiming their bills to create “a standard where the FCC no longer has any authority over these ISPs” and the only recourse for consumers being to file a complaint with the FTC if the ISPs “violate their terms and conditions,” he said.
“There's room for something reasonable” on compromise legislation, but elements of Title II will need to be in any final bill, including “consumer protections in sections 201 and 202 and the general conduct standard,” Doyle said. “You could create a whole new title” within the Communications Act “and take out all of the extraneous parts of Title II” that the FCC forbore from applying to the 2015 rules, “but you still have to have a cop on the beat that someone can go to.”
House Communications Vice Chair Doris Matsui, D-Calif., is pessimistic about prospects for a compromise anytime soon. “We're laying the groundwork” and examining the landscape, including the pending decision in the three-judge U.S. Court of Appeals for the D.C. Circuit panel's review of Mozilla v. FCC, she said. “I haven't seen much movement” toward a compromise, but “I'm of a mind to let the matter rest for a little bit and see what happens.”
Rep. Anna Eshoo, D-Calif., cited the role of Title II language in future legislation as a make-or-break issue. That title “is very important for protecting consumers” from potential ISP price gouging but Republicans “will never agree” to including the section's language in legislation, she told us. “It dances on the head of that very important pin.” Eshoo would “be the first one to introduce [a bill] if it brought the sides together,” but Republicans “will not give up on” barring use of II as a legal basis for future rules.
Rep. Darren Soto of Florida marked himself among a smaller group of House Communications Democrats who aren't fully opposed to the Republicans' position on contours of net neutrality legislation, including the role of Title II. “Any net neutrality bill should serve” as part of the foundation for a future legislative markup, he said. “I don't think any one bill should be the final call. I'll be looking for elements consistent with what I said” during the subcommittee's hearing, including a new internet-specific Communications Act title and rules applying equally to ISPs and edge providers.
Editor's note: This is part I of a two-part series on net neutrality proposals in the House. The second part will focus on what Republicans are seeking.