Schatz Eyeing Possible Legal Vulnerabilities to Net Neutrality Rollback
Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, became at least the third congressional Democrat to raise the prospect of a legal challenge to FCC Chairman Ajit Pai's move to roll back the 2015 open internet order. Pai is acting in a way that may be “legally consequential” and “a problem” down the road, Schatz told reporters Tuesday. He called Pai’s unveiling of the NPRM “shocking” and said the articulation didn’t seem “even keeled.” He called Pai’s declaration of war “a mistake, both legally and as a matter of strategy.” Schatz said such a stance makes a legal challenge to Pai's actions likely. "I don't think there's any doubt that there's a litigation aspect to this," he said.
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Sen. Richard Blumenthal, D-Conn., and House Commerce Committee ranking member Frank Pallone, D-N.J., raised the possibility of such a challenge last week.
“When they do an NPRM, they are supposed to conduct an inquiry,” Schatz said. “They are supposed to receive public comment, they are supposed to establish a record. You would never have anybody in the judiciary announcing their position, declaring that they will win in the end, that this is a fight and they intend to win it. He sounded more like a political person taking a political position rather than someone who was going to really inquire as to the best path forward.” Pai is “duty bound” under the law “to look at the record,” where there “is no constituency” for what the FCC is doing, Schatz said, predicting great pushback from the public. He said that telecom industry officials slam the use of Communications Act Title II for net neutrality publicly and tell another story to their investors. “You have to assume that the thing that they say to their boards of directors is the true thing, otherwise, the consequences are pretty serious,” Schatz added.
Sen. Mike Lee, R-Utah, introduced his promised Restoring Internet Freedom Act Monday to kill the FCC open internet order and prevent any later similar promulgation from the agency. His office said he will push S-993 following Pai’s announcement that he would seek to roll back the order (see 1704260063). It's a reintroduction of an earlier Lee bill from 2015 (see 1602260064). “Few areas of our economy have been as dynamic and innovative as the internet,” said Lee, a member of the Commerce Committee. “This is largely because the federal government has taken a hands-off approach that has allowed permissionless innovation to deliver unthinkable technological advances in such a short amount of time.” Lee touts eight GOP co-sponsors, including Whip John Cornyn and Ted Cruz, both of Texas, and Rand Paul of Kentucky. “The FCC has taken encouraging steps to address this overreach, and the Restoring Internet Freedom Act would help ensure that the Internet remains open and free of heavy-handed federal regulations,” said Sen. Ron Johnson, R-Wis., another co-sponsor. The bill is referred to the Commerce Committee, where Chairman John Thune, R-S.D., said he prefers bipartisan negotiating on open internet legislation.
“I haven’t looked at it yet, but we do have some ideas about an open internet piece of legislation,” Thune told reporters Tuesday. “We’re of course awaiting some interest among Democrats in trying to move forward.” He expects Democrats will focus on pushing for grassroots rallying against the FCC rollback of the open internet order. “The Democrats are at some point, I believe, going to come to the conclusion that having this shifting back and forth depending on who’s in power in the administration doesn’t provide and create the kind of certainty that is going to fuel investment in technology and the internet.” Legislative action is the only course for such certainty, Thune said. “There are a lot of folks out there who believe that’s the best path.”
Thune is “waiting right now” on introducing his own legislation on the topic, he said, citing past discussions. “We have the makings and the outline of a bill, but we’re not going to move forward on a bill until we’re convinced we have some Democrats who are going to work with us.” Schatz is focused on grassroots mobilizing and said he is not in a legislative compromise posture, which he said may be at odds with such mobilizing. He repeated his thought that bipartisan legislation is extremely unlikely now, although he said he talks often with Thune and respects his attempts. The legislation from Lee comes across as much of a “marker” as anything and didn’t seem to suggest any compromise, said Schatz.
Schatz and Sens. Cory Booker, D-N.J., offered an open letter to Pai to oppose his net neutrality rulemaking. “Our committee and the American public are again paying close attention,” the Commerce Committee Democrats wrote, posted Tuesday by the Daily Kos. “The public does not accept Republicans taking away their rights online in the name of corporate profit. Just a few weeks ago, Republicans underestimated the public’s outrage at the successful repeal of privacy protections for users online.”
Thune is following Pai's rhetoric in unveiling his open internet NPRM, which included a harsh attack last week on Free Press, defenders of the 2015 order. “Both sides have conversations that sort of energize their respective supporters,” Thune said. “The Dems, the left, has been very energized during the [Chairman Tom] Wheeler years over there, during the [President Barack] Obama years. It’s not uncommon for that to happen.” To craft bipartisan legislation, "it’s advisable and advantageous in terms of moving that forward, that we try and pull Democrats to the table," Thune said. Pai “has to decide what he wants to say and how he wants to say it, but from my standpoint, I think sometimes the hot rhetoric is counterproductive to getting legislative results," Thune said. "But that’s my world and not his.”
Of the U.S. Court of Appeals for the D.C. Circuit denial to take up further challenges (see 1705020046), Schatz didn't see a "clear victory," he told reporters, suggesting the battle will continue: “Proponents cheer that this affirms that what the FCC did was legal; it also may open the aperture for an other-than-Title II approach.”