Schumer Raises Prospect of Open Internet Legislation

“Congress should make net neutrality rules permanent,” said Schumer in his commentary. “To prohibit ideological political appointees from unilaterally dismantling the order, we would welcome the partnership of our Republican colleagues to codify into statute the full protections of net neutrality, including the authority and ability of the FCC to adapt regulations to changing conditions.”

Schumer “seems to be drawing a red line here,” TechFreedom President Berin Szoka said. “They want an open door for the FCC, and Republicans are not going to do that.” Interpretations of Schumer’s comments are that Democrats are “playing hardball” at legislative negotiation or that they have “no intention of actually getting legislation passed,” said Szoka, a longtime advocate for congressional compromise who noted that Schumer didn't acknowledge previous GOP offers to legislate. “I increasingly think at least the Democratic leadership is going to stonewall. … It is politically significant that Democrats have elevated this to the level of the minority leader.”

“The notion that Net Neutrality protections could be legislated is an interesting one, as long as there's no devil's bargain to gut the FCC of its power to protect Net Neutrality or its mandates to promote affordability, choice and privacy,” emailed Free Press Policy Director Matt Wood. “But what's most important -- and what I'm most focused on in Schumer's piece -- is the incredibly important point that 'The Open Internet order is working well as it is and should remain undisturbed' and that [President Donald] Trump and [FCC Chairman Ajit] Pai cannot get away with 'any undoing of the protections of net neutrality.'" Schumer has always been a “champion” of net neutrality, Wood said.

Schumer’s suggestion “that Congress legislate to resolve the net neutrality matter is appealing because, ultimately, it’s up to Congress to set policy through law, at least on fundamentally important policy questions,” said Free State Foundation President Randolph May. “Schumer’s piece shows no willingness to seek a middle ground, so that’s discouraging.” Retaining Title II classification is likely “a nonstarter” among the GOP, May said, also arguing that “prohibitions relating to matters like paid prioritization should not be absolute, but rather examined for permissibility under marketplace competition and consumer harm standards.” Schumer’s arguments “will do more harm than good unless he shows considerably more flexibility and willingness to compromise,” May said.

“The certainty of bipartisan law transcends administrations,” Thune wrote. “Over the past few months, many of my Democrat colleagues have grown to appreciate this more. Regardless of what happens at the FCC with the 2015 rules, I again stand ready to work on legislation protecting the open Internet that sets forth clear digital rules of the road for both the Internet community and government regulators.”

Senate Democrats including Massachusetts' Ed Markey and Washington's Maria Cantwell expressed doubt about legislative negotiation with Republicans earlier this year. Schumer initially was scheduled to join Markey for a news conference last month to defend the order and focus on grassroots opposition to agency proceedings (see 1702070042). If any protections are diminished, expect "expect a wall of resistance from Senate Democrats, who will continue fighting tooth and nail to protect fair and equal Internet access for all Americans," Schumer said. Senate Commerce Committee ranking member Bill Nelson, D-Fla., is one of the few Democrats to publicly express interest in legislation and resumed negotiation with Thune this year, following extensive negotiation on a draft bill last Congress.

Thune’s 2015 proposal would have banned “blocking, throttling, and paid prioritization,” he said Friday. Former FCC Chairman Tom “Wheeler rejected this bipartisan outreach,” Thune said. “Instead, he and his staff lobbied to block such discussion from happening in Congress.” Hill Republicans are split this Congress on net neutrality and what type of legislation they would be open to. House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., said last month she wants the FCC to act first on net neutrality and that she would not back a legislative ban on paid prioritization, to which Thune said the Senate can operate on a separate track from the House (see 1702130044). Szoka said GOP use of the Congressional Review Act tool to dismantle rules could affect the political calculus for Democrats on such negotiation. He pointed out how the tool, which can dismantle regulation such as FCC ISP privacy rules, prevents similar rules from being developed in their place. If Congress kills the privacy rules, Democrats may face a bind in retaining a Title II order without the ability to have any implementing privacy rules in the way they may want, he said.

Schumer didn’t explicitly discuss Title II but said the FCC must “maintain” its “clear oversight authority” from the order, part of a “common-sense legal framework” that “won in court last year.” Pai “has already taken several actions to undercut fair Internet access,” Schumer said. “In his first two weeks on the job, Chairman Pai stopped nine companies from providing discounted high-speed Internet to low-income individuals, and he jammed through nearly a dozen industry-backed actions, including some to begin curtailing net neutrality.” Pai defended the move and opened it for comment (see 1703020059).