Berninger Sees Stay Request Driving Net Neutrality Legislative Negotiations

The pressure for net neutrality legislation rose last week from some strong advocates of that approach, some of whom have telecom and tech industry ties. Dan Berninger, founder of VCXC and the leader of a nascent group of tech and business industry advocates styling themselves as the Tech Innovators, orchestrated the lobbying of several Senate Commerce Committee Democrats' offices Thursday. He told us the concerted move from industry pressing for a stay of the FCC’s net neutrality order may create a new impetus for net neutrality legislation.

Berninger’s lobbying focused on the draft net neutrality legislation proposed by Senate Commerce Committee Chairman John Thune, R-S.D., and his House Commerce GOP counterparts in January. These GOP leaders say they want to work with Democrats on a bipartisan bill, but no Democrats have joined them, despite some Democrats repeatedly saying they’re open to discussion. The draft bill would codify net neutrality rules while limiting the FCC’s reclassification of broadband as a Communications Act Title II service and its use of Telecom Act Section 706.

During Thursday’s lobbying, Berninger was accompanied by David Farber, an ICANN board member; ZipDX CEO David Frankel; Digex founder Doug Humphrey; and Vonage co-founder Jeff Pulver. The group lists 15 affiliated individuals on its website, including business executive Mark Cuban, a vocal critic of the FCC’s net neutrality order and not present at last week's lobbying sessions. The group's members had until recently called themselves the tech elders. They met with bipartisan staffers for the Senate Commerce Committee and with the offices of Sens. Gary Peters, D-Mich.; Joe Manchin, D-W.Va.; Communications Subcommittee ranking member Brian Schatz, D-Hawaii; Amy Klobuchar, D-Minn.; and Claire McCaskill, D-Mo. McCaskill recently told us there doesn’t seem to be much cross-talk between Republicans and Democrats on Commerce about net neutrality legislation (see 1504160034), though Senate Commerce Committee ranking member Bill Nelson, D-Fla., repeated last week that Democrats are “working as we speak” on such legislative efforts, mentioning talk of transparency (see 1504290037). Some of those senators, such as Manchin and Schatz, have described openness to bipartisan legislation.

Democrats have been unwilling to negotiate “because there’s no leverage in terms of bringing them to the table” up until now, Berninger said in an interview Friday, saying Democrats “have been very disciplined about defending Title II.” He and his Tech Innovator colleagues oppose Title II and “made our case” on what they think the problems of that reclassification, embodied in the FCC’s net neutrality order, would do. “It is the Title II that is the biggest threat.”

But that leverage will be “gone” if industry forces succeed at getting a stay of the FCC’s Title II order, Berninger said, suspecting the specter of a stay may drive bipartisan negotiation. “This whole thing is going to flip around. The clock is really ticking.” That creates “a few weeks” of really important negotiating time while the stay request is pending. If the stay is successful, “then the compromise is off the table,” Berninger said.

Others have continued pushing for legislation. Robert McDowell, a Republican former FCC commissioner now with Wiley Rein, penned an op-ed for the Richmond Times-Dispatch pressing the two senators from Virginia to legislate on net neutrality. “Draft bills continue to drive bipartisan discussions on Capitol Hill that could undo the FCC’s utility rules while still attaining the White House’s ostensible policy goals,” McDowell said, slamming the FCC’s current order.

Rick Boucher, a former Democratic House lawmaker who’s now honorary chairman of the Internet Innovation Alliance, spoke to Sirius XM advocating that approach. “Now the Republicans are saying ‘OK, we understand, you’ve got leverage Democrats, so here’s what we’re willing to do,’” Boucher said. “Now Democrats have not seized on that yet. But a number of senior Democrats on the committees of jurisdiction in the House and in the Senate have expressed strong interest in considering that approach.”

Boucher criticized the Congressional Review Act resolution of disapproval offered by Sen. Rand Paul, R-Ky., last week. Paul’s resolution is “the wrong approach” and “more of a political statement” since it would surely face a White House veto. Several observers have said the net neutrality strategy split within the GOP caucus -- with some prominent Republicans like Paul and Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, favoring a resolution of disapproval -- also will make it harder for Democrats to come to the table on any bipartisan legislation (see 1504280045).

McDowell and Boucher have testified before Congress this year on draft net neutrality legislation from the Commerce Committee GOP leaders. Berninger plans to “take our public awareness campaign to other cities,” he said, saying there are no immediate plans for any lobbying of House Democrats.