Not All Senate Commerce Lines Up To Back Possible Thune/Nelson Net Neutrality Deal

“We possibly have a stronger proposal,” said Sen. Deb Fischer, R-Neb. “We’ll see what happens with this [Thune/Nelson] one and what we need to do to move forward.” Fischer has sharply criticized the FCC net neutrality order and been outspoken on tech and telecom policy issues over the last year. “Obviously, I’m not entirely pleased with what the FCC has been up to,” she said. “It’s a group now that I think is guided by ideology instead of really looking at what is needed by the people of this country. I think many of their decisions have been harmful for families and businesses and if there’s any way I can work with my colleagues to address some of those decisions that they’ve come up with that I believe are harmful, I’m going to look at every avenue available.”

Legislation “might be the only route that’s available to us because of... the divisions that you see on the commission now under Chairman [Tom] Wheeler,” Fischer said. There’s “not specifically” a timeline for her "stronger proposal," she said, but it would “probably not” be ready for release before the August congressional recess.

“I have not heard that,” Thune said of an alternative proposal from Fischer. “I’m not sure exactly what that does [to his negotiations]. I’d be interested in finding out about it.” He chalked up Fischer’s interest to the many people “who want to present a message to the FCC,” as he and Nelson also do. “We’re still negotiating that,” Thune said of his own efforts Tuesday, emphasizing that’s his preferred path. “We’re getting closer.”

Thune and Nelson have been negotiating since before the beginning of the year and recent negotiations have picked up in intensity, coming down to what Thune told us was one major outstanding issue involving a draft bill that’s evolved from what he first issued in January. The deal was premised on codifying net neutrality protections while avoiding Communications Act Title II reclassification of broadband, a source of ire for many in industry and Capitol Hill Republicans and part of the February net neutrality order. No similar negotiation is happening in the House. Thune and Nelson recently predicted resolution in a matter of weeks (see 1506040046). Sens. Roger Wicker, R-Miss., and Brian Schatz, D-Hawaii, the leaders of the Communications Subcommittee, stay in touch on negotiations and strongly back a deal if compromise can be reached.

Deal's Prospects in Commerce?

“If they reach a deal, I think it could get out of committee,” said Sen. Jerry Moran, R-Kan.

“Depends on what the deal is,” said Sen. Joe Manchin, D-W.Va., less sure of whether a deal could clear committee despite his own past statements favoring bipartisan legislative efforts. Sen. Roy Blunt, R-Mo., said much the same, unwilling to weigh in given the ongoing state of negotiation. “It would depend on what it was,” Blunt said of his possible support for the end product.

Manchin and Moran are among Commerce Committee members who publicly favor bipartisan compromise on the controversial issue. “I very much support legislation dealing with net neutrality,” Moran said, emphasizing the issue’s importance and believing “a response to the FCC’s decisions would be helpful, particularly providing some certainty and reduce the amount of litigation.” He said he encourages and welcomes the Commerce leaders’ negotiation and hopes “there are other Democrats who will join in that effort. It would be great to see a bipartisan effort.”

Ongoing net neutrality litigation “could go on for years,” warned Sen. Tom Udall, D-N.M., a Commerce member who formerly led oversight hearings of the FCC on the Appropriations Committee. “We should explore the idea of legislation to protect net neutrality and do it on a bipartisan basis. That’s why I’m supporting what Senator Nelson and Chairman Thune are doing.” If bipartisan negotiating “can be done any place, it can be done on the Commerce Committee,” Udall added. “These two are really good at working with each other.”

Some Commerce Committee Republicans fear any net neutrality protections. “I just remain concerned about the federal government stepping in and regulating the Internet,” said Sen. Steve Daines, R-Mont. Other Senate Republicans on the committee, including presidential candidates Ted Cruz of Texas and Marco Rubio of Florida, lash out at the order but decline to reveal specific legislative desires. Some Republicans outside of Commerce, including Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Sen. Rand Paul, R-Ky., a White House contender, prefer the more aggressive attack on the FCC’s net neutrality through the rarely successful Congressional Review Act resolution of disapproval process.

Democratic Reluctance

One faction of Commerce Democrats aligns with the order and has resisted the idea of legislation. The White House recently told us no legislation is necessary at this time, which some see as a significant if not insurmountable hurdle with influence on Hill Democrats (see 1506090054). Democrats considered in lockstep with the White House on net neutrality include Sens. Richard Blumenthal of Connecticut; Maria Cantwell of Washington and Ed Markey of Massachusetts.

“I don’t think we need any" legislation, said Cantwell. She dismissed concerns about the possibility of a Republican-led FCC following the 2016 presidential elections and referred to net neutrality as a “broad public issue” where people do not want to be “artificially” caught and potentially face higher prices. The order was what “needed to happen,” Cantwell said.

“I’m supportive of what the FCC did,” Sen. Amy Klobuchar, D-Minn., said. “I haven’t talked to [Thune and Nelson] yet.”

Markey didn’t rule out legislation, despite dismissing the idea before. He posed several “key” questions that he would ask of any draft produced by Nelson and Thune. “What would the impact be on the venture capital investment in software and Internet companies unaffiliated to the large companies?” Markey said. “The value of the large companies has dramatically increased over the last year and a half, evidenced by the increase in value of Time Warner [Cable] just in the year and a half while Title II was being talked about being implemented” and the “dramatically high percentage of all venture capital in America going to software and the Internet. … I would then have to see what the impact is on anything that they’re doing because right now all segments seem to be enjoying tremendous economic opportunity under the existing framework.”

“I’m happy there’s a discussion, but it’s too early to know if it’s bad or good,” Sen. Cory Booker, D-N.J., said of the legislative negotiation. “We’ll see how the discussion evolves.”

“It’s been quite a while now since we looked at the FCC and how it operates and what it regulates, and a lot has changed since the law was passed the last time,” Blunt said of the Nelson/Thune negotiations. “It’s a good time to look at it and hopefully we’ll take advantage of that opportunity. I think Chairman Thune wants this to happen, and hopefully Senator Nelson does as well.”

“The ultimate goal is how does it impact economic interest and also what are the goals for all the public interest protections which ordinarily the FCC has the ability to impose,” Markey said. “I’d be asking those questions of whatever it is they produce.”

“Hopefully, we’ll be able to come together as a committee to address what I think has been a huge mistake by the FCC in their ruling, and we’ll take it from there,” said Fischer. She said she's “open to legislation” and cautioned that “the Commerce Committee may be looking at some other ways to address what the FCC’s done” beyond Nelson and Thune's efforts.