Senate Vote on Net Neutrality CRA Resolution Seen Next Week, Amid Potential 50-49 OK

“It could be a nail-biter vote” in the Senate, but GOP leaders are working to convince other senators seen wavering on net neutrality to vote no, Senate Commerce Chairman John Thune, R-S.D., told reporters Monday. Lobbyists and others who support the old rules have become increasingly vocal in floating the possibility of a 50-49 vote scenario hinging on McCain's absence, noting CRA rules require only a majority of senators who are present on the day a vote takes place for a resolution of disapproval to pass. A 50-49 vote would be a majority if only 99 senators are present. McCain's office didn't comment.

“Having Sen. McCain not here is an issue” if it means the final tally is 50-49 in favor of the measure, Thune said. Democrats “are going to have to answer the question about what that vote ultimately means for them” if that scenario comes to pass, Thune told reporters Tuesday: “I'm not going to say” it's inappropriate for Democrats to seek a vote on the measure given McCain's absence. "We know we're going to vote on it” and “there's only so much time allowed for it” under CRA rules, he said. The measure's supporters have until June 12, the day under the current projected Hill calendar that would mark 60 legislative days since the FCC published the order (see 1802220049).

Other Republican senators offered a range of reactions to the possibility the CRA resolution could pass because of McCain's absence. “It's kind of unfortunate they're taking advantage of a really sad situation,” said Senate Homeland Security Committee Chairman Ron Johnson, R-Wis., a member of the Senate Communications Subcommittee. “I hope” potential Senate passage doesn't kick off momentum for it in the House, he said. Senate Rules Committee Chairman Roy Blunt, R-Mo., cited the intricacies of Senate procedure, saying the resolution is “a privileged motion and if that's the way [Sen. Ed Markey, D-Mass., S.J.Res. 52's sponsor] wants to exercise his privilege, he can.” The entire CRA push is generally just a “political stunt that they're trying to pull off,” said Sen. Cory Gardner, R-Colo.

Senate Communications ranking member Brian Schatz, D-Hawaii, acknowledged McCain's absence could ensure the resolution passes. “We're going to try and maximize the number of people who vote for it,” he told us: “I'm not really contemplating” any other possibility now. “Let's just see what happens” once the resolution clears the discharge petition hurdle, said Senate Commerce ranking member Bill Nelson, D-Fla. “It's a horrible situation” for McCain “and we hope he would come back soon,” said Sen. Joe Manchin, D-W.Va. Democrats have always insisted “there is a fix but it's a shame the [Senate] doesn't work well enough” to enact a true net neutrality compromise, he said.

GOP Support Eyed

The resolution's backers believe “we have a good chance of getting some more Republicans to support us,” Schatz said.

Sen. John Kennedy, R-La., told us Tuesday he remains completely undecided and is “still studying it,” despite his move in March to sponsor the Senate version of the Open Internet Preservation Act (HR-4682/S-2510). House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., filed HR-4682 in December. The bill would bar blocking and throttling but doesn't address paid prioritization (see 1712190062). Lobbyists noted continued industry chatter about other potential Senate GOP supporters of the CRA measure but one official said Kennedy “seems like less of a possibility.”

“I could see how” a 50-49 Senate vote in favor of the CRA resolution “could be spun” as supporters taking advantage of McCain's absence to force it through, but Democrats “obviously wouldn't put it that way,” said one tech sector lobbyist supportive of the junked rules: “They would argue it's got bipartisan support” because of Collins' backing and that they're finding a solution that has popular support.

Senate passage of the resolution won't get supporters of the 2015 rules “any closer to succeeding in rolling back” the rescission order given the measure's long odds in the House, said Information Technology and Innovation Foundation Director-Telecom Policy Doug Brake. Senate passage would “give the activists some momentum,” he said: But “they face a pretty insurmountable” situation both in getting majority House support and convincing President Donald Trump to sign the measure.

Net Neutrality Notebook

House Commerce Committee ranking member Frank Pallone, D-N.J., and House Communications Subcommittee ranking member Mike Doyle, D-Pa., raised concerns again Tuesday about FCC broadband data collection practices and questioned whether the commission used “faulty” data to justify its December vote to rescind the 2015 net neutrality rules (see 1712140039). Pallone, Doyle and nine other House Commerce Democrats made similar complaints in an August in comments filed in docket 17-108, the rescission proceeding (see 1708040055). The FCC failed to acknowledge the lawmakers' concerns about the data in its final rescission order and unveiled a revised broadband data map in February (see 1802270043) that “we hoped would show the Commission had worked to improve its data,” Pallone and Doyle said in a letter to FCC Chairman Ajit Pai. “Yet by all accounts, this map continues to wildly misrepresent the availability of broadband to Americans across the country and demonstrates that the Commission has failed to respond to the bipartisan, bicameral calls for accurate data.” The map, which showed areas across the U.S. presumed eligible to receive support for deployment of 4G LTE service as part of the USF Mobility Fund Phase II auction, also was criticized at a March Senate Communications Subcommittee hearing (see 1803130056). “We are particularly concerned that such unrepresentative data were used as the basis of the Commission’s decision to undo consumers’ net neutrality protections,” the lawmakers said. They sought confirmation of whether the FCC used data from Form 477 filings to reach its conclusion on the rescission proceeding and if not, what data the commission did use. If 477 data wasn't used, “why has the Commission deemed these data sufficient for other Commission purposes, such as for use in making decisions on how to deploy funding from the Universal Service Fund, but not a sufficient basis for supporting its decision to reverse net neutrality protections?” the Democrats said. The FCC didn't comment.

Pai continued to defend the net neutrality rollback under Communications Act Title II in letters to lawmakers. "Americans will still be able to access the websites they want to visit," he told lawmakers who opposed and supported the commission's plan as it headed toward a Dec. 14 vote. "There will still be regulation and regulators guarding a free and open Internet," he said. "This is the way things were prior to 2015, and this is the way they will be." Pai's responses were included in filings of exchanges posted Monday in docket 18-5. The letters came from Nelson and 38 other senators (here), including Maria Cantwell, D-Wash., as well as Reps. Suzan DelBene, D-Wash., (here) and Vicente Gonzalez, D-Texas (here). House Commerce Committee Chairman Greg Walden, R-Ore., Blackburn and 105 colleagues backed the plan (here). Rep. Robert Pittenger, R-N.C., said he backed rolling back regulations in principle but noted constituents' concerns on net neutrality and asked certain questions (here). Pai didn't directly answer those questions. His responses were the same to all and mirrored his previous letters to other lawmakers (see 1804300039).