Pro-Title II Bill Backers Hope to Generate Interest This Year Despite Long Odds

Democratic leaders on the House and Senate Commerce committees aren’t fully discounting the possibility the panels could devote some time to evaluating the newly filed Net Neutrality and Broadband Justice Act during the remaining months of this Congress, but some acknowledge any serious consideration of the measure will likely have to wait until 2023 at the earliest. Democratic leaders bristled at some Republicans’ view that lawmakers unveiled the measure as a reaction to FCC nominee Gigi Sohn’s stalled Senate confirmation process (see 2206230066).

The new net neutrality bill differs from the Save the Internet Act Sen. Ed Markey of Massachusetts and other Democrats filed during the last Congress, with Markey restricting the proposal's language only to reinstating broadband as a Communications Act Title II service rather than seeking to fully reinstate the commission’s rescinded 2015 rules. “We wrestled with” whether to seek a more comprehensive bill now, Markey said Thursday during a virtual news conference. He, Sen. Ron Wyden, D-Ore., and lead House sponsor Doris Matsui, D-Calif., decided they didn’t want to “lock the FCC into its 2015 posture” on net neutrality.

The new bill is “consistent with” the approach taken in the Save the Internet Act but instead gives the FCC more freedom to “take on unreasonable and discriminatory practices” in a way updated to the circumstances of 2022, Markey told reporters. The challenge was to give the commission “the discretion to use Title II to go out and write rules that reflect current needs,” Wyden said: The measure institutes a “basic floor of fairness.” Matsui, who is House Communications Subcommittee vice chair, didn’t attend the news conference.

Markey insisted to us it was still vital he and Wyden file the net neutrality bill now despite the imminent start of the August recess and the fall midterm election campaign that will be in full swing when the Senate is scheduled to return after Labor Day. “There is an urgency to ensure that we have a competitive marketplace” despite the limited time left on the legislative calendar, Markey said in an interview ahead of filing the bill. Wyden “and I have been working on this bill for months and we think it’s very important to begin this discussion now so that we can ensure it’s top of mind in our country.” The “same way we’re having a debate” on the now-passed (see 2207280060) Chips and Science Act (HR-4346) on the need to boost U.S. tech competitiveness, “net neutrality plays a huge role in our economy as well,” he said.

Timeline Questions

“Obviously” Senate Commerce Chair Maria Cantwell, D-Wash., “supports” the bill’s aim of restoring the FCC’s 2015 rules, “so we’ll be talking to her about ensuring we highlight the issue over the next couple of months,” Markey told us. There’s still “a long time” left before this Congress adjourns in early January, so a committee hearing or markup of the measure “could happen,” Cantwell told us.

“I’ve supported similar net neutrality legislation in the past” and “it’s an important issue that deserves attention,” said Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M. “There are many pending issues before” Commerce, including work on spectrum and privacy legislation, but “from a tech perspective,” net neutrality remains “an important one” too.

House Communications Chairman Mike Doyle, D-Pa., was “initially offered” first dibs to be lead sponsor of the House companion, as he had been on the Save the Internet Act during the last Congress, but “I thought it was prudent to have” Matsui “take the lead on” the new bill since he’s retiring. He instead signed on as a cosponsor. “It would be kind of silly to introduce a bill that obviously is going to go into the next session when I won’t be here,” Doyle told us.

“It’s hard for me to imagine” the net neutrality bill is “going to move” during this Congress, but “I haven’t really talked” with House Commerce Chairman Frank Pallone, D-N.J., about the extent to which the panel will make the net neutrality measure a focus in the coming months, Doyle said: “We may come back here the second week of August for a vote or two” if the Senate passes a proposed reconciliation bill, but after that the chamber won’t be back until September when “you’re getting into budget stuff” and the midterm election campaign makes legislating more difficult.

Senate Commerce GOP leaders told us they’re skeptical about Democrats’ reasons for bowing the measure this late in the current Congress. Commerce ranking member Roger Wicker of Mississippi believes it’s purely a “messaging” bill, in part because Democrats have only slender majorities in both chambers and Republicans overwhelmingly oppose Title II reinstatement. The Senate is likely unable to invoke cloture on such a bill right now given the chamber is tied 50-50 and only three Republicans backed a 2018 bid to undo the 2015 rules’ rescission via a Congressional Review Act resolution (see 1805160064), lobbyists said.

Confirmation Politics?

“I don’t know why” they’re devoting time to the issue now, said Communications ranking member John Thune, R-S.D. “They haven’t filled” the FCC seat with Sohn or another nominee, “so maybe they’re frustrated with not getting their way” via the stalled confirmation process. “I assume it’s to satisfy some political imperative” given it’s likely Commerce would deadlock in a vote on the measure given the likelihood all panel Republicans would oppose it, Thune said. The Senate’s stall on Sohn is viewed as largely based on a group of moderates in the Democratic caucus refusing to take a position on the nominee.

Markey and Wyden insisted Thursday the Sohn deadlock wasn’t a factor in their decision to file their bill now. “We would be introducing this legislation regardless” of whether the FCC had shifted to a 3-2 Democratic majority, Markey told reporters. “We need” the Senate to confirm Sohn “as soon as possible,” but Congress “should act as well” on the net neutrality issue. “The point of our legislation is to up the ante in terms of the visibility” of the matter, Wyden said: “We know that there is the challenge with respect to” Senate consideration of Sohn, but “we also know that people are looking” for Markey and him “to be all in all the time. And if you’re going to have an all-in approach, you’ve got to push this important piece of legislation.”

The Supreme Court’s June ruling in West Virginia v. EPA also “did not factor in” the bill’s filing, Markey said. The high court’s opinion in the case didn’t overrule the Chevron doctrine but appeared to further clamp down on the ability of agencies like the FCC to regulate, absent clear direction from Congress (see 2206300066). “We feel very confident” the FCC would be able to act to regulate broadband “under any circumstances,” Markey said.

Republicans’ “anxiety over Gigi Sohn” belies the likelihood that if the FCC “took action” to enact new net neutrality rules, it “would probably be challenged in court and you wouldn’t get anywhere for a while,” Cantwell told us: “I’ve always thought a solution” in Congress “would be the better way to go, but it’s hard to get down to those details.” Senate Republicans “should help us get a full, functioning FCC” by confirming Sohn, which is “something that I hope will still happen” this year, Lujan told us.

“All of us think that it would be nice to see Congress once and for all settle this issue, as opposed to having it ping-pong back and forth” with every change in the FCC’s partisan composition, Doyle told us. “That the Senate is holding up” Sohn’s confirmation is extremely unfortunate, because she’s extremely qualified, he said, but “the way that this gets settled is when Congress finally passes something. That’s the best way to settle the issue.”

The new net neutrality bill’s “substance is not very surprising” given the Democrats’ “goal the entire time” has been to bring back Title II reclassification, said Information Technology and Innovation Foundation Broadband and Spectrum Policy Director Joe Kane in an interview. “The timing” of the bill’s filing is more surprising given its proximity to the August recess given that makes it “even less likely to pass” than if the sponsors filed it last year. “There’s probably some benefit to the Democrats” pointing to the bill during the midterm campaign and they can “signal” it’s an issue the FCC will only be able to take up if Sohn’s confirmed and gives Democrats a 3-2 majority, Kane said: But that’s not going to make Sohn’s confirmation any more “politically viable” among senators not already committed to supporting her.

Free Press co-CEO Jessica Gonzalez and Public Knowledge Senior Policy Counsel Jenna Leventoff both strongly endorsed the new net neutrality bill during the news conference. “This is about making sure that we as consumers have a watchdog in the federal government that is keeping an eye on” ISPs, Gonzalez said: “Right now we don’t have that” because of the FCC’s rescission of its 2015 rules. Title II reclassification “will put the FCC back in control, to ensure that the public interest comes before the providers’ interest,” Leventoff said: “It will enable the commission to get broadband service to everyone and not just the Americans lucky enough to live somewhere that a provider has deemed profitable enough to serve.”

FCC Chairwoman Jessica Rosenworcel and Commissioner Geoffrey Starks both hailed the net neutrality bill. “While I trust the FCC has the authority it needs to adopt Net Neutrality rules, legislation that helps ensure it is the law of the land is welcome,” Rosenworcel said. “This legislation is an important step that will provide certainty to consumers and broadband providers, and allow everyone to move forward,” Starks said. The Computer & Communications Industry Association also praised the measure.