Hill Lawmakers, State-Level Democrats Promise Action to Counter Net Neutrality Rules' Repeal

Federal lawmakers and state governments promised action Thursday to counteract the FCC 3-2 vote to roll back its 2015 net neutrality rules. State Democratic attorneys general announced plans to sue as expected (see 1712130051), and other officials said they will protect consumers within their states if the FCC won’t. Sen. Ed Markey, D-Mass., and House Communications Subcommittee ranking member Mike Doyle, D-Pa., gained support for respective plans to file Congressional Review Act resolutions of disapproval to undo the FCC's repeal (see 1712110050 and 1712120037). The FCC's action drew impassioned statements from lawmakers in both parties, with Republicans largely in support and Democrats uniformly in opposition.

New York AG Eric Schneiderman (D) will lead a multistate lawsuit, he said. Democratic AGs from Illinois, Massachusetts, Pennsylvania, Rhode Island and Washington state said they will sue, and others could still join. They will file a petition for review in “the coming days,” Washington AG Bob Ferguson (D) said. Schneiderman, who has been probing alleged fake comments submitted to the agency, said he will sue. He called the order "a big Christmas gift to big telecom companies,” in a video tweeted.

“The agency has completely failed to justify this decision and we will be suing to stand up for the free exchange of ideas and to keep the American people in control of internet access," said Massachusetts AG Maura Healey (D). Ferguson sees “strong legal argument that with this action, the federal government violated the Administrative Procedure Act -- again.”

California AG Xavier Becerra (D) is evaluating legal options but still reviewing the order, a spokesman said. “The FCC failed to do what is right,” Becerra said. The vote “undermines our free speech,” tweeted Pennsylvania AG Josh Shapiro (D). The FCC “disregarded the overwhelming view of the public and ignored the legal precedent upholding the existing net neutrality rules,” said Illinois AG Lisa Madigan (D).

That the regulator isn’t investigating names and addresses taken and used for net neutrality comments “is offensive,” said Commissioner Jessica Rosenworcel, who supported Schneiderman's probe. She predicted other state AGs likely will join Schneiderman in the legal complaint.

Capitol Legislation

Markey unveiled the draft text of his CRA resolution, which would say Congress “disapproves the rule submitted by the [FCC] relating to 'Restoring Internet Freedom' ... and such rule shall have no force or effect.” Doyle again promised to file a companion CRA in the House, expected to include identical language. Markey and Doyle can't file the CRA resolution until “the FCC publishes the final version of the order,” meaning it will occur when opponents file challenges against the repeal, a House Democratic aide said.

Fifteen senators and 10 representatives signed on as co-sponsors of the resolutions. Senate co-sponsors include Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, and Senate Judiciary Antitrust Subcommittee ranking member Amy Klobuchar, D-Minn. House co-sponsors include Reps. Anna Eshoo, D-Calif., and Jerry McNerney, D-Calif. “With this CRA, Congress can correct the Commission’s misguided and partisan decision and keep the internet in the hands of the people, not big corporations,” Markey said. “Our [Republican] colleagues have a choice -- be on the right side of history and stand with the American people who support net neutrality, or hold hands with the big cable and broadband companies who only want to supercharge their profits.”

Communications lobbyists expect the resolutions to be popular among Democratic lawmakers and their supporters but said prospects for enactment are extremely remote. “Dead on arrival as an attempt at actual policymaking” in either house, even with the pending narrowing of the Republicans' majority in the Senate to 51-49 once Sen.-elect Doug Jones, D-Ala., is sworn in (see 1712130001), one telecom lobbyist said. “I'd be looking more at its value as a campaign tool” for Democrats as they head for the 2018 midterm elections, a Democratic lobbyist said.

“We still have to try” for the CRA, a House Democratic aide said: “There have been a handful of Republicans breaking” against rescission and in the Senate “they can force a vote.” There is the possibility the six-month window between the promulgation of the order and deadline for CRA passage could be when there's a “Democratic Congress” should the party win control of either house in the 2018 election, the aide said.

Rep. Mike Coffman, R-Colo., said he's planning legislation “pertaining to” net neutrality given his opposition to repeal of the 2015 rules. “This conversation belongs” in Congress, he tweeted. An accompanying photo shows language from Coffman's draft bill that would bar blocking, throttling and paid prioritization. A Republican lobbyist noted resistance among some Hill Republicans to including a paid prioritization ban in net neutrality legislation. Sen. Susan Collins, R-Maine, also registered her opposition via a letter to Pai with Sen. Angus King, I-Maine.

State Rules

Some states are considering net neutrality rules even though the order would pre-empt state broadband regulation.

Washington Gov. Jay Inslee (D) plans to direct the Washington Utilities and Transportation Commission (UTC) to “establish a process for ISPs to certify that they will not engage in practices inconsistent with net neutrality principles,” Inslee said Wednesday. The state plans to limit state benefits and UTC pole attachment rules to ISPs that certify as net neutral, and to review other state benefits like easements and taxes, he said. The agency is “is evaluating the governor's proposal and will be discussing internally over the next few weeks how to best address it,” a spokeswoman said.

Inslee will use his state's purchasing power to incentivize companies to adhere to net neutrality principles. The state will pursue regulations and legislation to award contracts to net-neutral vendors, he said. It will create a statewide internet speed test and work with legislators to strengthen consumer protection laws. It will pursue legislation authorizing public utility districts and rural and urban port districts to provide retail ISP and telecom services, with municipal broadband networks required to follow net neutrality principles.

Pennsylvania Gov. Tom Wolf (D) eyes similar. Inslee “has it right,” Wolf tweeted. “States must ramp up efforts to protect consumers and a free internet now that the FCC and federal government has turned its back. We are reviewing this proposal and other options.” Gov. Andrew Cuomo (D) tweeted, “New York will take all necessary steps to protect #NetNeutrality.”

The California Public Utilities Commission should fill the regulatory void, Commissioner Martha Guzman Aceves said Thursday at the CPUC’s livestreamed meeting (see 1712140029). “This is something that I find particularly egregious.” She said the Trump administration “acted again to just eliminate protections without [putting] anything in its place."

NARUC said the FCC action is “unfortunate,” though it “does maintain vital transparency requirements.” Congress should “step in and bring certainty to this issue,” the state commissioner association said.

Congress Reacts

Leading congressional Republicans praised the FCC and repeated their calls for legislative action.

"Congress must take the lead in setting a clear path through bipartisan legislation to avoid the risk of regulatory back and forth,” said Senate Commerce Chairman John Thune, R-S.D. “I call on Democrats and Republicans who want to preserve a free and open internet to work together on permanent consumer protections.” Comcast, the Information Technology and Innovation Foundation and NCTA were among those urging a legislative compromise.

The FCC's action will “preserve the open and dynamic Internet the American people have known since the early 1990s,” said House Commerce Chairman Greg Walden, R-Ore., and House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn. “Now, the table is set for Congress to provide clear, permanent rules through a bipartisan legislative solution. We hope that all stakeholders, and our Democratic colleagues, will finally engage in serious negotiations soon.”

Speaker Paul Ryan, R-Wis., said rolling "back this egregious government overreach into the most innovative space will benefit all users.” Repeal “will encourage investment in Internet infrastructure, promote competition, and ultimately benefit consumers,” said House Judiciary Committee Chairman Bob Goodlatte, R-Va. “We must continue to make sure that anti-competitive and discriminatory conduct on the Internet is deterred and punished.”

Senate Commerce ranking member Bill Nelson, D-Fla., voiced interest in a compromise, criticizing the deregulation. “Congress needs to fix the mess the FCC has now created with a lasting solution that will fully protect consumers and preserve the FCC’s authority,” he said. “Securing these protections will be difficult and won’t happen quickly given the current political climate in Congress. But, for the sake of consumers, we have to continue to try.”

House Commerce ranking member Frank Pallone, D-N.J., didn't sign on to Doyle's CRA proposal but said the FCC's “abdication of responsibility will not stand, and I will keep fighting to put the FCC’s net neutrality protections back in place.” Eshoo and Markey noted their plan to file an amicus brief on behalf of the anticipated legal challengers. “The Chairman’s idea has been rejected in the court of public opinion with tens of millions of Americans weighing in,” Eshoo said. “Now the issue will be judged in the courts.” McNerney released the text of the speech he planned to give at the FCC meeting, which Commissioner Mignon Clyburn successfully moved to be included in the record. The agency Wednesday denied his request to speak (see 1712130056).

Other net neutrality news Thursday: on commissioners' vote 1712140039 and on other litigation and reaction 1712140015.