Prospects for Net Neutrality Legislation in 115th Congress Dim Amid Rancorous Debate
Continued partisan rancor over the FCC's possible rollback of 2015 net neutrality rules and reclassification of broadband providers as common carriers under Communications Act Title II largely poisoned short-term chances for net neutrality legislation, lawmakers and lobbyists told us. Some suggested a bill might not face a more favorable political environment until the next Congress in 2019, depending on the outcome of the 2018 midterm elections. Telecom-focused congressional Democrats said they continue to have no appetite for pursuing net neutrality legislation until an anticipated FCC reversal of the 2015 rules winds its way through court.
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Senate Communications Subcommittee Chairman Roger Wicker, R-Miss., believes net neutrality legislation remains possible this Congress “but there would have to be a consensus” on language “and I don't think we've quite arrived” there. House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., is optimistic about legislation negotiations but “we'll have to work on it and see.” The path will be clearer once the FCC acts on its NPRM, she told us. House Digital Commerce Subcommittee Chairman Bob Latta, R-Ohio, said there would be a better sense of how to proceed on net neutrality “after the dust settles” at the agency. Sen. Cory Gardner, R-Colo., said he would be watching the FCC's actions for guidance.
Senate Commerce Committee ranking member Bill Nelson, D-Fla., and Sen. Richard Blumenthal, D-Conn., signaled a willingness to consider such legislation at some future date but said the environment isn't right. Blumenthal was one of several Senate Democrats who highlighted the expected court challenge of the anticipated rollback as a prime reason to not pursue a legislative fix now. “That's the first line of defense,” Blumenthal told us. “Reversal in the courts is well merited. The second line of defense would be legislation.” Courts' consideration of a challenge “could take a while,” making the prospect for legislation in this Congress questionable, he said.
House Commerce Committee ranking member Frank Pallone, D-N.J., called congressional Republicans “fakes” for seeking a bipartisan consensus on net neutrality legislation given expectations for FCC action and GOP backing of the Congressional Review Act resolution of disapproval effort that in March abolished FCC ISP privacy rules (see 1706070050 and 1706210059). “They have no intention of passing legislation” on net neutrality that would remotely resemble existing FCC rules, Pallone told us. “That's just something they put out. I don't believe it for a moment.” Pallone was among House and Senate Democrats who rallied on behalf of the 2015 net neutrality rules Wednesday (see 1707120017).
House Communications ranking member Mike Doyle, D-Pa., believes the rulemaking process and any litigation need to “play themselves out first.” Rep. Anna Eshoo, D-Calif., noted her own past attempts to work with House Republicans on legislation that would have maintained the protections envisioned in the 2015 rules, which failed to gain traction. “I don't think that opportunity is there” now, she said. “If [congressional Republicans] are truly for net neutrality, they'd accept the rules of the road that are in place.”
“There is no prospect for [net neutrality] legislation,” said a communications sector lobbyist. Nelson and Senate Communications ranking member Brian Schatz, D-Hawaii, in particular “would absolutely like to negotiate” on a bipartisan bill, “but there's no political latitude for that” now, the lobbyist said. Facebook's newfound interest in a legislative compromise makes the situation more interesting, but fundamentals won't change until internet groups “start pressing congressional Democrats hard to negotiate,” the lobbyist said. “This doesn't seem to be time for compromise” on net neutrality, but “I think we could see something after the FCC takes action or perhaps more likely not until after the midterms,” said Doug Brake, Information Technology and Innovation Foundation telecom policy senior analyst.
Major companies play a role in influencing how congressional Democrats respond to the net neutrality debate, but the caucus is also concerned about how legislation would affect “the next Facebook or Google,” a Democratic lobbyist said. Democratic lawmakers are going to be watching for how the framing on net neutrality changes as the FCC moves forward, the lobbyist said. The rhetorical shifts from AT&T, Facebook and others show a desire to "create some room for agreement" on Capitol Hill, the lobbyist said.