Hill GOP Divisions on Paid Prioritization May Be a Factor in Net Neutrality Legislative Prospects
Widening divisions among Capitol Hill Republicans on whether to include limits or an outright ban on paid prioritization in a final net neutrality bill could factor into the prospects for the renewed push for a bipartisan legislative compromise, lawmakers and lobbyists said in interviews. House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., filed Tuesday her Open Internet Preservation Act (HR-4682), which doesn't include language on paid prioritization (see 1712190062). There's interest from House Commerce Committee Chairman Greg Walden, R-Ore., in holding a hearing on paid prioritization issues facing the traditional internet community, the "medical world" and autonomous vehicles stakeholders, given the FCC's recent vote to rescind its 2015 net neutrality rules (see 1712120037 and 1712140039).
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Blackburn told us before filing HR-4682 that the bill wouldn't include any paid prioritization language, saying she preferred to “focus on things that there's agreement on,” like bans on blocking and throttling. But she was doubtful she will be willing to add in limits on prioritization later, saying “we have a lot of innovators who don't want us to deal with that, who want us to leave that alone.” Blackburn said earlier this year that she opposed paid prioritization ban language that Walden and multiple senior Republicans previously backed in a 2015 draft bill (see 1506040046 and 1702130044).
Walden told us he believes “it's fine to start without” paid prioritization language in HR-4682 but added “we'll see where things go” in discussions about the bill in the coming months. He said he included the paid prioritization ban in the 2015 draft he crafted with Senate Commerce Committee Chairman John Thune, R-S.D., and then-House Commerce Chairman Rep. Fred Upton, R-Mich., as a “starting point” but “things have changed” in the intervening years. Walden said a paid prioritization hearing is still “in the works” but hedged on when it would occur. Blackburn was reluctant to commit to supporting a paid prioritization hearing, saying “we'll see what ends up happening.” She said she's aiming to “start with the things we have agreement on, then we'll get to the other issues.”
Telecom-focused Democrats meanwhile view HR-4682 and any other net neutrality legislation that doesn't include a paid prioritization ban as a definite nonstarter for their caucus. HR-4682 is a “CYA” -- “cover your ass” -- bill aimed at giving the appearance that Blackburn and other Republicans are seeking a compromise, said Rep. Anna Eshoo, D-Calif. “This is not a serious bill. It's not for real.” House Commerce ranking member Frank Pallone, D-N.J., referred to HR-4682 in a statement as “even worse than I had expected and it shows that Republicans just do not understand what real net neutrality means.” House Communications ranking member Mike Doyle, D-Pa., specified that Blackburn and other Republicans hadn't “worked with us on this legislation.” Doyle and Sen. Ed Markey, D-Mass., are leading the planned introduction of a Congressional Review Act resolution of disapproval to counteract the FCC's rescission order (see 1712110050, 1712120037 and 1712140044).
Many in the telecom industry publicly praised HR-4682, but some internally view it as purely a “messaging bill” aimed at giving Republicans something to point to as evidence “they are for strong net neutrality rules,” one telecom lobbyist said. The bill had 15 co-sponsors -- all Republicans -- at our deadline Wednesday. Stakeholders will closely watch whether HR-4682 morphs into compromise legislation or a broader bill, amid rampant speculation before its introduction that Blackburn was aiming to “go after all providers, not just ISPs,” the telecom lobbyist said.
Some expect HR-4682's scope could be expanded to fold “the Googles and the Facebooks of the world” into a unified net neutrality framework, particularly given continued criticism of Republicans' use of a CRA resolution in March to end FCC ISP privacy rules (see 1703280076), a telecom lobbyist said. Some also believe Blackburn could seek to include interconnection language in the bill, the lobbyist said. Blackburn, like FCC Chairman Ajit Pai, criticized edge providers for what she views as hypocritical behavior on net neutrality, such as Twitter's temporary block on Blackburn's video to launch her campaign to replace retiring Sen. Bob Corker, R-Tenn. (see 1710250050 and 1711280024).
House Commerce Republicans also haven't “spoken to us” about Walden's proposed paid prioritization hearing, a House Democratic aide said. “The only thing we've heard about it is what's been reported” in Communications Daily and other media, “so that's all news to us.” House Democrats “don't set the agenda,” but if House Commerce Republicans “want to have a paid prioritization hearing, our members will be happy to show up and have a conversation about it,” the Democratic aide said. But if the hearing occurs “hopefully they will follow committee procedure and let us pick our own witnesses” so the panel remains balanced -- something the aide said didn't occur in the planning for an indefinitely postponed net neutrality hearing originally set for September aimed at getting feedback from CEOs from top ISPs and edge providers (see 1707250059, 1708030064 and 1708300050).
It's unclear what direction a House Commerce paid prioritization hearing would go, in part because “a lot of Republicans have appeared to shift position” on how to address the practice, a House Democratic aide said. “My guess is that's going to be a difficult hearing for them to have because they don't all agree with each other on that issue, while almost every Democrat agrees that it's a bad thing.”
Other telecom policy observers and lobbyists also said Republican divisions on paid prioritization could be a stumbling block. Walden “may want to do a hearing on this issue but [House Communications] is still very much within Blackburn's purview,” one telecom lobbyist said. “I find it hard to imagine she will be willing to hold a hearing like that when she's staked out the position she has. She's not going to backtrack.” It's possible Walden may look to compromise with Blackburn and instead of seeking a ban instead pledge to “watch real closely and make sure that the FTC has strong consumer protections so they can address any problems” involving prioritized services, another telecom lobbyist said.
It “makes sense” to hold hearings aimed at “building on common ground” on net neutrality, but paid prioritization is where consensus “starts to break down,” said Information Technology and Innovation Foundation Telecom Policy Director Doug Brake. “The next wave of innovation will be built on prioritized services,” but there likely still will need to be limits and rules governing the practice. “What I worry about is Republicans are so skeptical of giving the FCC rulemaking authority over broadband while Democrats have a reasonable point” that some limits are necessary, Brake said. “It's a real binary issue that's been hard to resolve.”
Net neutrality-related hearings seem like a natural “next step” for House Commerce to take and “it may be helpful if [Walden] wants to look specifically at paid prioritization” given the FCC's rescission vote, said Americans for Tax Reform’s Digital Liberty Executive Director Katie McAuliffe. “What we'll see" moving forward is “that the fears [about the 2015 rules' repeal] are not real and in a few years the internet is going to be completely different.”