Pai Meets Democratic Net Neutrality Outrage on Capitol Hill

The meeting between Pai and the lawmakers lasted under an hour and was in the Rayburn House Office Building. Several lawmakers filtered into the room after afternoon votes, including several Democrats such as Reps. Anna Eshoo of California, Peter Welch of Vermont, Yvette Clarke of New York and Frank Pallone of New Jersey, the Commerce Committee’s ranking member. House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., attended, as did several Republicans such as Reps. Bob Latta of Ohio and Adam Kinzinger of Illinois.

Critical Democratic questioning dominated the briefing, one aide said. There was said to have been minimal input from Republican lawmakers other than an endorsement of Pai’s actions from one. The FCC declined comment. Blackburn indicated a willingness to hold an FCC oversight hearing in the future, a GOP committee aide told us. She initially had one scheduled for March and since its postponement said she was trying to reschedule.

Pai “had a story, and he was sticking to it,” said Eshoo, a former Communications Subcommittee ranking member, in an interview. “The points I raised and what’s so deeply troubling to me -- and I took it back to many, many years ago -- is that a major part of the mantle of the Republican party was competition. They understand what it was, they built it into policies.” She said it was part of the 1996 Telecom Act. “I said, ‘I think that you have a serious disregard for competition, what you’ve done with BDS, saying that if there might be someone that can enter a market you consider it a competitive market.’ That’s laughable. And, of course, net neutrality.” Pai “talks a lot,” Eshoo said. She wants to have Pai “speak before the committee in a public hearing” on these issues, she said.

There was a “sense of disappointment” on net neutrality among Democrats, said Rep. Raul Ruiz, D-Calif., a committee member who attended. “It was mostly the Democrats leading the discussion about protecting net neutrality.”

Blackburn lauds Pai “for personally coming down to the committee to brief us,” she said in a statement. “I remain hopeful that all parties involved can come together in a bipartisan fashion and work with one another on a solution that not only protects consumers but the future of the internet." Pai has said Congress should act on net neutrality, as has Commissioner Mike O'Rielly.

“Short of a bill, short of some sort of law, there’s nothing he can do legally to make ISPs or anyone else for that matter enforce any of this,” said Doyle. “This is all promising to be good players, promising to abide by a certain set of principles, and no cop on the beat that can do anything about it right now as we speak today.” The net neutrality and business data services actions will raise prices and stifle innovation, Doyle said, mocking the idea that Pai would take their comments seriously. “I challenged him that there is no legal authority the FCC has to enforce any of this. And he did not challenge it. If he thinks he has some … way to enforce that, he certainly didn’t mention it. And he doesn’t. And he was saying this should have been done under [Communications Act] Title I. Well, [former FCC Chairman Julius] Genachowski tried to do it under Title I. Verizon sued, and the court said you couldn’t do it under Title I. When [former FCC Chairman Tom] Wheeler did it under Title II, he did it with tons of forbearance.”

Comment Extension?

Pai’s actions would amount to “kicking the legal legs out from under” net neutrality, Pallone said Wednesday at an event hosted by New America’s Open Technology Institute. “We have to do everything we can to stop Chairman Pai from accomplishing that goal.”

Congressional Republicans may not really understand the implications, said Pallone, citing questioning to Rep. Jim Sensenbrenner, R-Wis., at a recent town hall meeting about the law enacted killing FCC ISP privacy regulations. Sensenbrenner said it’s not necessary to use the internet (see 1704170048), and Pallone said he worried the same ideas fueled Pai. ISPs have financial and political reasons to go after content, Pallone said, mentioning companies could have “fears of reprisal.” He said there’s no reason for Democrats to believe that if net neutrality rules are repealed, there will be GOP-orchestrated legislation to accomplish the same protections. Republicans know the proposal will be unpopular, he said. The 2015 draft legislation pushed by House Commerce Committee Chairman Greg Walden, R-Ore., which Walden said in recent months he would love to revive, had “more loopholes than protections” and Blackburn “is even more blunt” in discussing the issue, Pallone said.

“There’s going to be a tactical rollout plan,” Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, told reporters of mobilizing outrage against the GOP rollback. “We want to build momentum.” He said the issue has potential to become an issue in the 2018 campaign cycle. “This doesn’t strike me as the heaviest lift I’ve ever seen,” Schatz said. “This is people who are already online who care a lot about the internet.”

The hope is that the FCC “does an extension” for comments into fall, around September, said Pallone counsel David Goldman. The comment cycle would end in mid-August, which “seems like a bad time to be ending comments,” said Goldman. He said he found the move strange on some level given the lack of threat. He and Pallone questioned Pai's moving forward on this before the FCC has a full complement of commissioners. “I don’t think anybody on any side of this issue thinks there’s any threat that Chairman Pai is going to use Title II to extend his regulatory reach,” Goldman said. “We have time to talk about this.” One aide said this topic came up during Wednesday's briefing with Pai but said the chairman didn't commit to extensions.

No Compromise?

Net neutrality emerged as a divisive topic during Wednesday’s Senate Commerce Committee hearing on broadband deployment (see 1705030029). The committee’s top Democrat said compromise isn't possible at the moment.

“There are too many folks -- from Chairman Pai to stakeholders and lawmakers -- that are dug in on this issue, making compromise an impossible task,” said Senate Commerce Committee ranking member Bill Nelson, D-Fla. “The climate isn’t ripe at the moment for any negotiations that will lead to real, substantive legislation that could garner sufficient bipartisan support.” Nelson “will continue to try,” he said, lauding the “lasting finality” of legislation. Senate Commerce Committee Chairman John Thune, R-S.D., affirmed that -- “Try we will,” he said, noting the uncertainty of changing administrations. “I hope we can get there.”

“The aperture for legislating in this moment is vanishingly narrow,” Schatz told reporters. “The first battle is clearly at the FCC.” He said no one has shown him a workable alternative to use of Communications Act Title II.

“It may be not quite right yet, but I hope that it gets right soon, because if we want to do something on this issue, it’d be nice to start trying to put our heads together sooner rather than later,” Thune told reporters. “We won’t get everybody on our side, and we probably won’t get everybody on their side, but I think there’s a broad middle here where we could find that consensus solution.” Thune said 60 votes will be required in the Senate, requiring Republicans and Democrats working together.

“I don’t see that happening any time soon,” Doyle told reporters Wednesday of net neutrality legislation. “The position that they appear to be taking right now doesn’t seem like there’s much room for compromise." It would take “a lot” to compel compromise, Doyle said.

Senators raised the issue during Wednesday's hearing. Sen. Ted Cruz, R-Texas, slammed the open internet order as “lawless” overreach, while Sens. Ed Markey, D-Mass., and Richard Blumenthal, D-Conn., touched on their concerns about rollback to the order and FCC ISP privacy rules. Consumer privacy is “basically for sale,” Markey said. Brian Hendricks, Nokia head-technology policy and public affairs for the Americas, testified of the uncertainty surrounding net neutrality and privacy regulation. He urged Congress to engage in “careful deliberation on how a legislative solution (which we strongly favor) will balance consumer protections with the impact to the capital decision making of the very providers we want to invest in improving connectivity.”