Hill Republicans Eye Return to Active Opposition on Net Neutrality After FCC Adopts Order

Congressional Republicans have remained relatively quiet about the FCC’s draft net neutrality order since Chairwoman Jessica Rosenworcel released it earlier this month (see 2404030043) but are likely to become more active in opposition when the commission adopts it as expected next week, lawmakers and observers said in interviews. Congressional Democrats have been comparatively active since the draft’s release, including sending Rosenworcel suggestions aimed at preventing loopholes that ISPs could use to circumvent regulation. Congressional Democrats highlighted that divergence in style Thursday by bringing Rosenworcel to Capitol Hill for a news conference that amounted to a preemptive victory lap ahead of the FCC’s April 25 vote on the order.

Congressional Republicans have largely confined their public opposition since the draft order’s release to posts on social media. Senate Communications Subcommittee ranking member John Thune (S.D.) became an exception Thursday, saying in a floor speech that he “will do everything I can here in Congress to overturn these onerous new regulations. Because if the new Biden regulatory regime is left in place, I fear that it won’t be long before we’ll be looking at the very opposite of net neutrality.” House Commerce Committee Republicans in early April called the draft order a sign the FCC “continues pushing Biden's Broadband Takeover by imposing unnecessary heavy-handed regulations.” Senate Commerce Committee ranking member Ted Cruz of Texas tweeted the FCC’s new proposal is “Obamacare for the Internet, and … utterly unnecessary. If the FCC truly cared about protecting American consumers, it would give this charade a rest.”

House Commerce Republicans “already stated our position that we’re absolutely against” the net neutrality proposal, including reclassifying broadband as a Communications Act Title II service, when Rosenworcel first dropped an NPRM aimed at reinstating the FCC’s rescinded 2015 rules in September (see 2309260047), said Communications Subcommittee Chairman Bob Latta of Ohio. “We’ll be doing things in” House Commerce to push back against the FCC’s net neutrality actions just as the panel did after the 2015 rulemaking and its subsequent rescission during the Trump administration, he told us.

“I’m sure we’ll have hearings again” that place great emphasis on the net neutrality issue, much as what happened when House Communications Republicans and Rosenworcel clashed on the NPRM during a December hearing (see 2311300069), Latta said. He pointed to Republican FCC Commissioner Brendan Carr’s public campaign against the net neutrality proposal, including in a statement last week (see 2404110060), as reflecting what congressional Republicans believe is wrong with the draft order.

'All Options' Available

Latta, Cruz and Thune separately left open the possibility that congressional Republicans could take other actions, including pursuing a Congressional Review Act resolution of disapproval to rescind the FCC’s order. There has been no Hill action so far to advance a CRA resolution to undo the FCC’s digital discrimination order (H.J.Res. 107) despite interest from Republicans (see 2402260001).

“All options are on the table,” Cruz told us. “I hope Congress presses back” on the new net neutrality order, but “Democrats in the Senate are not going to because they support never-ending regulatory overreach.” He “would be very supportive of congressional Republicans using whatever tools they have to try to rein in” what could be “a power grab by unelected bureaucrats to try to regulate pricing and terms which will only hurt consumers.”

“We’ll be doing everything we can to slow or stop” the FCC’s new net neutrality order if the commission approves it as drafted, Thune told us. “You can count on that.” Congressional Republicans “weigh in every chance we get in opposition to them using Title II to regulate the internet,” he said: “That’s a huge mistake, and it’s been proven that we were right about getting rid of it” under FCC Chairman Ajit Pai, given that U.S. networks got “through the [COVID-19] pandemic in such great shape compared to some other countries around the world” with stricter regulations.

“I never know if silence” from Republicans indicates “anything at this point” about how they will approach opposition to the new FCC order post-adoption, said House Communications ranking member Doris Matsui, D-Calif. “I haven’t heard about” any GOP plans being in the works. There is “so much that we have to deal with right now, so this might not be something [Republicans] are focused on at this point in time,” she said.

'Outrage' Not Lacking

“There's not a lack of outrage” among congressional GOP leaders that the FCC is bringing back the 2015 rules, said Republican former Commissioner Mike O'Rielly, who voted for rescinding the order in 2017. “It's just they understand the process” and realize the commission's Democratic majority has already “made up its mind.” Republicans have been making the case against revisiting this item since the NPRM's release, so they don’t need to “jump up and down at this current moment,” he told us. “The real fight is going to be in the judicial process,” but a CRA resolution and all “other tools will be on the table for the Republicans depending on how the election goes.”

“I think there is a realization that we're just going through” the same arguments again in this net neutrality round, said Digital First Project Executive Director Nathan Leamer, a former Pai aide. “The fact is, we fought in the courts and a lot of people have said what they're gonna say.” The fight is likely to ramp up after the FCC adopts the new order, but whether Hill Republicans look at a CRA resolution or the oversight process, the points they will be making haven't “necessarily changed,” he said.

“We haven't seen such full-throated opposition from” congressional net neutrality opponents because “they think that they're about to get an electoral win” in the November presidential contest with the FCC likely to again undo the rules when former President Donald Trump returns to office, said Nat Purser, Public Knowledge government affairs policy advocate. The communications sector has also now experienced the impacts of state-level net neutrality laws and “started to realize they can probably accommodate a lot of the regulations that are underway, so there's less pressure on their Republican allies” to oppose new FCC action with the same fervor.

“There's no shortage of reasons why it makes sense to adopt the net neutrality proposal that is currently before” the FCC, Rosenworcel said during the Democrats’ Thursday news conference. “It's good for consumers who count on broadband like never before. It's important for public safety. It's important for national security.” The federal government needs “to protect the growing innovation economy by making sure that we have rules that say you can’t throttle, you can’t slow down, and you can’t charge exorbitant fees just to have preferential treatment,” said Senate Commerce Chair Maria Cantwell of Washington.

Democrats’ focus right now is on the FCC’s expected order next week rather than seeking to codify the decision into legislation, said Sen. Ed Markey, D-Mass. He and Matsui during the last Congress filed the Net Neutrality and Broadband Justice Act in a bid to mandate the FCC implement Title II reclassification (see 2207280063). He and other Democrats “would support making” the coming net neutrality rules “permanent, but the action that’s about to take place is the important one. This will put” net neutrality rules “back on the books.”