Hill Republicans Likely Not Prioritizing Legislation to Stop FCC on Net Neutrality, for Now

House Commerce Committee Republicans renewed their concerns Tuesday with FCC Chairwoman Jessica Rosenworcel’s draft net neutrality NPRM reclassifying broadband as a Communications Act Title II service (see 2309280084), but no one is expecting GOP members of that panel or elsewhere on Capitol Hill to make a strong push for now on legislation to halt the expected rewrite. Net neutrality legislation would be even more unlikely to pass now amid divided control of Congress than it was last year when Democrats had majorities in both chambers (see 2207280063), lawmakers and lobbyists told us. Lawmakers are less enthusiastic about even pushing a pure messaging bill on the issue amid the current stasis, lobbyists said.

Title II reclassification “and the associated heavy-handed regulations that accompany this action continues to be a solution in search of a problem,” House Commerce Chair Cathy McMorris Rodgers of Washington, Communications Subcommittee Chairman Bob Latta of Ohio and 27 other panel Republicans said in a Tuesday letter to Rosenworcel. The GOP leaders raised the same point when Rosenworcel first announced the proposal in September (see 2309260047). Senate Republicans delivered a similar message earlier this month (see 2310050061).

“Your decision to forebear from twenty-seven provisions in Title II and over 700 regulations underscores that the Title II regime is not appropriate for broadband,” the House Commerce Republicans told Rosenworcel. The lawmakers also repeated their view that the NPRM is unconstitutional under the major questions doctrine the U.S. Supreme Court invoked in its 2022 West Virginia v. EPA ruling (see 2206300066). The Republicans pressed Rosenworcel for more information by Oct. 31 on the FCC’s process for drafting the draft NPRM, including when that work began, given its release a few days after Commissioner Anna Gomez joined the commission and gave the Democrats a 3-2 majority.

Latta told us before House Commerce letter’s release that he wasn’t totally ruling out legislation to register GOP opposition to the Rosenworcel proposal, but believes the panel's oversight role over the FCC will be an important avenue for addressing those concerns. “I want to have hearings” with Rosenworcel and the other commissioners “so they can come up and explain” why a net neutrality rewrite is necessary, Latta said. House Communications Republicans didn’t make net neutrality concerns a major part of the subpanel’s June FCC oversight hearing (see 2306210076). The matter was a major focus of the Senate Commerce Committee’s confirmation hearing the next day for Gomez and sitting Commissioners Brendan Carr and Geoffrey Starks (see 2306220067).

Republicans “have got to make clear that we’re absolutely against this idea,” Latta told us: Net neutrality “didn’t work before and it’s not going to work in the future” as a policy solution. “The day before” the FCC rescinded its 2015 rules in 2017, Latta said, “I asked my staff to record every call from a constituent who loses service” from their ISP as a result of the reversal, “and we’ve received zero calls” in the more than five years since. He invoked concerns that ISPs might roll back plans to expand broadband buildouts buoyed by money from the Infrastructure Investment and Jobs Act if the FCC enacts new Title II-based rules.

Senate Hurdle

Senate Communications Subcommittee ranking member John Thune, R-S.D., and other telecom-focused lawmakers highlighted the strong likelihood that no anti-Title II legislation would make it through while Democrats hold a majority in the chamber. “We will pursue any means possible to prevent a partisan action by the FCC, which the last six years have proven is totally unnecessary,” but while Democrats still hold the Senate “enacting legislation is probably a longshot,” said Thune, who’s also the minority whip.

Senate Appropriations Financial Services Subcommittee Chairman Chris Van Hollen, D-Md., doesn’t believe any attempt by House Republicans to torpedo the net neutrality proceeding by attaching a rider to the FCC’s FY 2024 funding bill would make it through a Democratic-controlled Senate and might not even survive the lower chamber given Republicans’ slim majority there. The FCC funding measure and report the House Appropriations Committee advanced in July contains no such language (see 2307130069) but hasn’t reached the floor. An anti-Title II rider would be a “poison pill” that “would violate the agreement” Senate Appropriations Committee Chair Patty Murray, D-Wash., and ranking member Susan Collins, R-Maine, reached earlier this year to advance bipartisan funding bills, Van Hollen said.

“Whatever happens” at the FCC on net neutrality “will go through the courts,” so that seems to be where Republicans’ focus will be for now, said Senate Commerce Chair Maria Cantwell, D-Wash. The Senate could still “play a role” by trying to move pro-Title II legislation like the Net Neutrality and Broadband Justice Act Democrats proposed last year, but “we’ve got a pretty busy dance card” of telecom priorities already, including the stalled push for a broad spectrum legislative package (see 2309190001).

Much of the debate while the FCC considers the NPRM in months ahead will “not be new,” said Communications Chairman Ben Ray Lujan, D-N.M. “I imagine that everyone will have similar positions to the ones” they voiced before the 2015 and 2017 rulemakings, “but there’s a lot that’s transpired between then and now,” including on connectivity issues that have increased resonance since the COVID-19 pandemic. “I hope that there’s a willingness to look at areas where there needs to be adjustments and changes” from what the FCC enacted in its past two orders on the subject, he said: “This should not be partisan.”

Shifting Priorities

“We can shine a light” on perceived shortcomings in Rosenworcel’s proposal and the arguments proponents make to justify a return to Title II-based rules, said Senate Armed Services Committee ranking member Roger Wicker of Mississippi, a past Commerce chair and ranking member. He previously led a working group with Sen. Kyrsten Sinema, I-Ariz., to write a bipartisan net neutrality measure (see 1903120078). “I tried my best to get someone from the FCC to show me one single problem that needs net neutrality to solve and I’ve yet to receive an answer,” Wicker said: “The parade of horribles that we used to hear” would come from the 2015 rules’ rescission “just doesn’t exist.”

Congressional Republicans’ lack of legislation to counter the Title II NPRM is at least partly a symptom of the party’s continued leadership upheaval (see 2310170072) since the early October ouster of Speaker Kevin McCarthy, R-Calif., lobbyists said. Many Republicans don’t see an upside to devoting significant time to rehashing the Hill’s long-static net neutrality debate, particularly with the Senate under Democratic control, said lobbyists who follow GOP thinking. There has been some communications sector interest in Republicans pursuing legislation to “narrowly target any perceived gap in authority the FCC claims on national security” as part of the net neutrality rewrite (see 2310050063) even though Carr and others argue no such statutory shortfall exists, one Republican official said.

“Given how many times Republicans have proposed legislation” in past Congresses “to enact bright line net neutrality rules without Title II and how many times Democrats have refused to work with them on it, I understand if they don’t want to spend their time on that this time around,” said AxAdvocacy Senior Vice President Evan Swarztrauber, a former aide to Carr and ex-FCC Chairman Ajit Pai. “There has been no apocalypse as predicted. There is no problem that needs to be solved.”

Republicans could still “pull together” an anti-Title II bill after the FCC completes its work on the new net neutrality rules next year, but it’s not clear the communications sector will see such a measure as its “highest and best use of political capital,” said New Street’s Blair Levin. Opponents of Rosenworcel’s proposal also keep “expressing enormous confidence that they’re going to beat it in court anyway.” The net neutrality debate may not have the same political importance it once had “at a time when” the FCC’s affordable connectivity program “is in jeopardy and USF may face significant legal obstacles” if Consumers’ Research prevails in the 5th U.S. Circuit Court of Appeals in its challenge of the program’s constitutionality (see 2309190072), he said.