Net neutrality fix faces hard sell

Two key Senate Republicans say they are open to a bipartisan legislative compromise on net neutrality, but their effort faces skepticism from both parties.

Since the election, Senate Commerce Chairman John Thune (R-S.D.) and Sen. Roger Wicker (R-Miss.), the chairman of a Commerce subcommittee on the internet, have said they are willing to work on a measure that keeps the core of the controversial internet rules but also allows Congress to limit the Federal Communications Commission’s powers.  

Net neutrality requires service providers to treat all internet traffic equally and bars “paid prioritization,” where content providers pay more to get higher internet speeds.

{mosads}The rules were cheered by Democrats but sparked fierce criticism from Republicans, especially the FCC’s decision to treat broadband internet as a public utility, establishing its authority for net neutrality under Title II of the Telecommunications Act.

Now, with Republicans controlling Congress and the White House and with one of their own, Chairman Ajit Pai – a vocal critic of the rules, in charge of the FCC, net neutrality opponents believe they are in prime position to roll back the rules.

Some opponents think it would be easiest to undo the rules through the FCC, where Republicans have a majority. But under that approach, net neutrality could just be restored when Democrats take back the White House, some say.

That uncertainty has many in the tech world hoping Congress can craft lasting rules and has Thune and Wicker believing they have an opening.

“The main concern that people have about an open internet is that there will not be paid prioritization. There will not be blocking, throttling,” Thune told reporters in January about what a compromise would look like. “I think those are all things we will be agreeable for.”

But he also spoke about limits on the FCC.

“We just want to make sure we stay away from … other things that the Commission can currently do under Title II,” Thune said, believing those two elements could bring in supporters.

Wicker also said addressing the FCC’s future powers was a chief concern.

“I think the starting position is that we’re not going to support regulating broadband as a telecom service or utility, the Title II provisions,” Wicker told The Hill in an interview Wednesday. “It’s just completely unacceptable in a world where technology changes every few weeks.”

Thune has long pushed for a legislative fix on net neutrality. In 2015, he introduced a bill along the same lines with Rep. Fred Upton (R-Mich.). But then-President Obama and Democrats ignored the bill in favor of the Democratic-controlled FCC moving ahead on its own.

Now, with Republicans back in power, net neutrality could be headed for the chopping block.

Pai and Republican FCC Commissioner Michael O’Rielly have stated their intention to revisit the rules. As chairman, Pai has already started chipping away at net neutrality, ending an investigation into data plans offered by Verizon and AT&T, which some said violated the rules.

Pai is already earning praise from key Republicans as he moves quickly to undo other Obama-era initiatives.

Rep. Marsha Blackburn (R-Tenn.), the chairwoman of the House Energy and Commerce Subcommittee on Communications and Technology, has already said Pai should get first crack at scaling back net neutrality.

“Let the FCC go in and do what they are able to do, make the first move on that, and then we’ll be able to revisit that situation,” she told reporters on Wednesday.

That means Thune runs the risk of rankling fellow Republicans if he’s seen as too eager to cut a deal with Democrats.

But there are lingering questions about the FCC’s role. It’s unclear how far Pai would actually want to go in rolling back net neutrality. And some warn that having the FCC reverse course on such a major rule could invite new legal obstacles.

“Just a year or two after having gone through this entire fact-driven, 400-page justification of why broadband is a Title II service and why net neutrality is important, to turn around two years later and say, ‘Actually, we were wrong about that’ — that’s a whole other area of legal risk,” an FCC official told the Morning Consult in December.

On the other side of the aisle, many Democrats are also openly skeptical of a legislative fix.

Some don’t believe Thune and Wicker are serious about working with them on net neutrality, with many Dems noting they haven’t seen any concrete offers for a deal. Democrats also question why GOP lawmakers would work to preserve rules which the new FCC chairman has long criticized and why Republicans would reach across the aisle when they control Congress.

Sen. Brian Schatz (D-Hawaii) previously expressed confidence about a legislative deal, but on Tuesday told The Hill he is less confident. 

“I don’t think there’s any appetite right now among Republicans to codify net neutrality as a matter of law,” he said. “If they were, we could talk, but they haven’t shown any willingness to do that.”

Democrats also worry that any bill on net neutrality might weaken the rules or FCC unacceptably.

During a press conference Tuesday, Sen. Ed Markey (D-Mass.), who sits on the Commerce Committee, said he would “oppose any legislative efforts to weaken the net neutrality order.”

Markey wouldn’t say if that meant he was ruling out negotiations with Republicans, only that he hadn’t seen anything on the table.

Sen. Ron Wyden (D-Ore.) and Markey insisted that the public backed net neutrality and that Democrats would use that support to defend the rules. 

Still some Democrats say legislation is their best chance to save the rules.

“Because it’s expected the new Republican FCC will undo the agency’s net neutrality rules, I believe only Congress can provide lasting safeguards,” Senate Commerce Committee Ranking Member Bill Nelson (D-Fla.) said in a statement Tuesday. “I am still open to finding a bipartisan legislative solution, although it’s not going to happen overnight.”

Wicker has also expressed interest in working with Nelson on the issue.

Despite the obstacles and uncertainties, Thune and Wicker see a chance for a lasting solution in Congress on net neutrality.

“There are other members in the Senate and in the [Commerce] Committee that I think we might be able to work with, so we’ll see,” Wicker told The Hill.

“Chats will take place in the hallway and staff to staff. I’m somewhat hopeful that we could actually have a legislative product.”