House Debates Net Neutrality Before Likely Bill OK; Called DOA in Senate

Expected House passage of the Save the Internet Act net neutrality bill (HR-1644) is unlikely to spur the Senate to take up the bill's companion version (S-682) or to rejuvenate a fledgling working group in the chamber aimed at writing alternative legislation, lawmakers and lobbyists told us. HR-1644/S-682 would reverse the FCC order rescinding its 2015 net neutrality rules and restore reclassification of broadband as a Communications Act Title II service (see 1903060077).

The House is expected to hold a final vote Wednesday on HR-1644, with most lobbyists expecting it to pass on party lines. Final consideration of HR-1644 would follow a sometimes-testy Tuesday debate in which both sides invoked familiar arguments for and against the bill. The chamber approved four amendments on voice votes. The chamber needed to debate six other amendments and was already scheduled to hold votes on two Democratic proposals. The House Rules Committee allowed 12 amendments to reach the floor, including two GOP-led proposals and 10 Democratic ones (see 1904080062).

Speaker Nancy Pelosi, D-Calif., spoke in support of HR-1644 during the floor debate, saying legislating net neutrality protection is a “bipartisan priority for the American people.” She said restoring FCC 2015 rules is one example of Democrats “honoring the will of the American people” in response to the 2018 election, which brought the party back into the majority in the House. House Commerce Committee Chairman Frank Pallone, D-N.J., said the bill “ensures that consumers have control over their internet experience rather than” ISPs.

Lead sponsor and House Communications Subcommittee Chairman Mike Doyle, D-Pa., was among those who countered arguments that the bill would lead to excessive federal control of the internet. "I didn’t come to Congress to work for" ISPs, he said. Recent comments by President Donald Trump's 2020 re-election campaign that favored the U.S. government's making spectrum being reserved for 5G available to carriers at wholesale (see 1903040058) are a case of favoring nationalization, Doyle said. Republicans should “take a little trip over to the White House and prevent” that sort of government takeover.

House Commerce ranking member Greg Walden of Oregon and other Republicans repeatedly emphasized their concerns this legislation would give government excessive influence in regulating broadband. House Communications ranking member Bob Latta, R-Ohio, referred to the bill as the “Government Takeover of the Internet Act.” House Minority Whip Steve Scalise, R-La., challenged Democrats to “show me what's so broken about the internet that the federal government needs to come in and save it.”

Future Agenda

The proposed law is “another plank in [Democrats'] socialist agenda,” Walden said. He emphasized the long odds S-682 faces in the Senate and the White House's Monday statement that Trump will veto the bill if it passes both houses of Congress. House passage of HR-1644 is “the end of its journey,” he said. Walden and other Republicans highlighted a trio of net neutrality bills they filed in February as pathways to a compromise net neutrality bill that wouldn’t rely on Title II as a legal basis (see 1902250051).

Senate Majority Leader Mitch McConnell, R-Ky., told reporters the Save the Internet Act is “dead on arrival” in that chamber despite expectations the House would pass the measure. Stakeholders on all sides of the net neutrality debate said that comment cements their views that S-682 faces long odds of passing in the chamber, where it would require 60 votes to end debate and proceed to final passage.

Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us he's in no hurry to bring up S-682 for committee consideration or to rush work on a bipartisan compromise via the working group he formed with Sen. Kyrsten Sinema of Arizona. She's the only Democrat in the chamber who hasn't signed on as a S-682 co-sponsor. FTC enforcement of net neutrality under the FCC rescission order “is the way to go and I think Title II is such a nonstarter because of the threat of rate regulation that I doubt I would look on [S-682] favorably,” he said.

The working group is “going well enough and progress is being made,” but it's in its early stages, Wicker said. Since “the internet is currently open and working well, not being throttled or blocked,” there's no need to rush consensus legislation, he said. Sinema's office didn't comment.

Senate Communications Subcommittee Chairman John Thune, R-S.D., told us he believes House passage of HR-1644 “certainly takes away from what was the incentive to put a group like that together, which was to come up with a bipartisan solution that we could all get behind that addresses the concerns that a lot of [the Democrats] have.” If Democrats are going to continue “down that path” by pushing S-682 in the Senate, “it looks like the pathway toward a bipartisan solution probably is starting to diminish” and the working group's efforts may be “less relevant,” Thune said. “It would be great” if Democrats sat down with Republicans because “the best long-term solution is certainty and the best way to get certainty is through legislative action.”

“Republicans in the Senate have no sense of urgency about” net neutrality, said Communications Subcommittee ranking member Brian Schatz, D-Hawaii, in an interview. “They believe that they won” because of the majority-GOP FCC's rescission order and “do not appear to be in a mood to legislate” one way or another.

Compromises

Rep. Jeff Fortenberry, R-Neb., removed a potential compromise measure from the table. He told reporters Monday he decided not to pursue refiling the 21st Century Internet Act he co-sponsored last year. The bill, filed by then-Rep. Mike Coffman, R-Colo., would have codified a paid prioritization ban and other rules, and give the FCC authority to regulate ISPs on “unfair and deceptive acts or practices.” It would have barred rate regulation for broadband services and set up ISP transparency rules (see 1807170048).

“I appreciated Coffman's attempt to at least unpack the fullness of the dialogue, because everyone's” divided on the net neutrality issue, Fortenberry said. He didn't say how he would vote on HR-1644 Monday but believes the entire construct of the debate over the bill as solely focusing on ISPs' behavior was “hypocritical.” The “whole framework of the debate is a false construct” given edge providers also have engaged in rampant paid prioritization, Fortenberry said.

House Democrats agreed to clear both Republican amendments on voice votes in a bid to increase GOP votes for HR-1644. One amendment, from Latta would require the FCC within three days of enactment to report to the House and Senate Commerce committees listing "the 27 provisions” of Title II “and the over 700 rules and regulations” the FCC forbore from in the 2015 rules. Republicans argued during the House Communications and House Commerce Committee markups that there were potential legal inconsistencies in language that Democrats believe would lock in place FCC forbearance from many parts of Title II for broadband regulation (see 1903260064).

The other GOP amendment, from Rep. Michael Burgess, Texas, would require the FCC “initiate a proceeding to examine the influence of all entities on the virtuous circle of the internet ecosystem and protecting the access of consumers.” Walden withdrew the language during the House Commerce markup. It reflected Republicans' concerns about net neutrality proposals not applying equally to edge providers (see 1903080032). House Rules didn't allow floor consideration of a similar proposal from Rep. Kendra Horn, D-Okla., that focused on the costs rural ISPs bear to transmit edge providers' data.

Democrats' Amendments

The two approved Democratic amendments addressed net neutrality-specific issues. A proposal by Rep. Katie Porter of California would require the FCC report within one year of enactment on “all enforcement actions taken by” the FCC under the legislation. Actions to be reviewed include "the amount of each fine imposed or settlement agreed to, the actions taken by the Commission to collect such fines and settlements, and the amounts of such fines and settlements collected.” The other amendment, from Rep. Maxine Waters of California, seeks a GAO report within a year on the importance of the 2015 rules on “vulnerable communities.”

Amendments still waiting for votes include a proposal by Rep. Ben McAdams, D-Utah, that would ensure restoration of 2015 rules won't prohibit ISPs “from blocking content that is not lawful,” including child porn and “copyright-infringing materials.” McAdams' language also ensures the bill doesn't impose “any independent legal obligation” on ISPs “to be the arbiter of what is lawful content.”

Also pending were proposals seeking to improve FCC broadband coverage data collection and its process for building the annual Telecom Act Section 706 broadband deployment report. Those include an amendment from Rep. Jennifer Wexton, D-Va., requiring the FCC report within 30 days on its plan for evaluating and addressing “problems with the collection” of Form 477 data on broadband coverage.

An amendment from Rep. Abigail Spanberger, D-Va., would tell GAO to make recommendations within one year on how the FCC can “produce more accurate, reliable, and granular maps.” An amendment from Rep. David Trone, D-Md., would bar the FCC from issuing a Communications Act Section 706 report “based on broadband deployment data that the Commission knows to be inaccurate” and would require it to “correct inaccuracies in statements made by the Commission” before a final report's release.

The other outstanding amendments, on other broadband deployment and competition issues, come from Reps. Anthony Brindisi and Antonio Delgado, both D-N.Y.; Sharice Davids, D-Kan.; and Greg Stanton, D-Ariz.