Rate Regulation Bill Heads to House Floor After 'Messy' Partisan Markup

House Commerce Committee Republicans advanced the No Rate Regulation of Broadband Internet Access Act (HR-2666) Tuesday on a 29-19 partisan basis, with Democrats lamenting a broken and messy negotiation process. The dissent was expected (see 1603140069) and hounded the legislation since Communications Subcommittee Chairman Greg Walden, R-Ore., took it up early this year. Rep. Adam Kinzinger, R-Ill., introduced the bill last year to prevent the FCC from regulating broadband rates after its net neutrality order.

No bipartisan amendments were offered. Committee Republicans and Democrats openly warred over the nature of the different partisan amendments offered and lamented the lack of real negotiation before the committee markup. “This is really getting messy,” Communications Subcommittee ranking member Anna Eshoo, D-Calif., told Republicans. “We didn’t see this amendment until maybe two hours ago.”

Walden offered an amendment he said would resolve some of the Democrats’ concerns, citing earlier concerns from Rep. Doris Matsui, D-Calif., about what she and others considered to be the overbroad nature of HR-2666. The amendment said the bill wouldn't affect FCC powers to enforce truth-in-billing, paid prioritization limits or its application of universal service support. “The term ‘rate’ means the amount charged by a provider of broadband Internet access service for the delivery of broadband Internet traffic,” the text said. The earlier bill had been slammed for lack of definition of rates.

Commerce Committee ranking member Frank Pallone, D-N.J., blasted the “unfortunate pattern” developing in the committee where Republicans take Democratic concerns and end up “doing it for us” in developing purported solutions. “We had no hand in the drafting of this amendment to supposedly address our issues,” Pallone said of the Walden amendment. The Walden amendment was approved 28-21, with Democrats opposed. Pallone read from a letter from FCC Chairman Tom Wheeler criticizing the broadness of the legislation and suggesting it was at odds with his earlier statements to lawmakers in opposition to rate regulation.

Republicans rejected three amendments from committee Democrats. Rep. Jerry McNerney, D-Calif., offered a short amendment saying: “Nothing in this Act shall be construed to affect the authority of the Federal Communications Commission to act in the public interest, convenience, and necessity.” Walden slammed the lack of a definition for public interest and worried about the lack of boundaries this would create for the FCC that defines the term. The amendment is “foundational,” countered Eshoo. “It’s a pretty sad day when we have to argue over language that says the FCC has to act in the public interest,” Pallone said. “It seems to me that’s so obvious. … I don’t see how anyone can justify not supporting it.” The amendment was defeated in a voice vote.

Eshoo and Matsui revived earlier amendments and both failed again in partisan roll call votes. Eshoo’s would have codified the forbearance in the FCC net neutrality order, and Matsui’s would have guaranteed broader protections than Walden included in his amendment. Democrats said Walden’s amendment wouldn't include carve-outs protecting the FCC from acting on issues such as data caps. “I have grave concerns about it and the underlying bill,” said Rep. Mike Doyle, D-Pa., worried about the legislation hurting the FCC ability to assess zero-rating programs. Walden asked Doyle if he backed T-Mobile’s Binge On program; Doyle said he has “some concerns” about Binge On. Walden repeatedly invoked Binge On about the ambiguity involved in whether the FCC allows programs or doesn’t.

It’s “unrealistic” to assume all concerns would be addressed in compromise, Kinzinger said. He insisted Republicans took concerns “to heart” and “really want this legislation to be bipartisan.” Three areas of concern of five mentioned earlier are specifically protected in the latest Walden amendment, he said.

“You’ve moved somewhat,” Eshoo conceded to Republicans, but lamenting the exclusion of such issues as data caps, transaction review, transparency and general conduct from the Walden amendment protections. “Maybe you think these things are a pile of junk, but they are very important elements,” she said. “I don’t think this effort is ready for prime time.” The FCC “would not be allowed to regulate data caps under our bill, that’s true,” Walden said later.

Eshoo insisted Democrats don't want rate regulation, either. “I hope with more work we can come to an agreement,” she said. “We may have too much of a chasm, but I think we should try.” The effort “deserves” their cooperation to “take another stab,” she said. “You and I need to sit down and talk, Mr. Chairman,” Eshoo said to Walden. “I would just ask directly if you could postpone this.”

“I’m always open to sitting down and talking,” Walden replied. “On some of these issues, we just have a disagreement.”

“I would encourage you both to sit down together,” Commerce Committee Chairman Fred Upton, R-Mich., urged at one point, suggesting possibility of “further accommodation” before it gets to the House floor. He would urge the Rules Committee to accept that cooperation.

“There’s no cross-the-aisle working together on it,” said Rep. Gene Green, D-Texas. “Particularly on this bill, I think we could get to bipartisan support.” The legislation will never advance through the Senate without Democratic backing, Green warned.