Officials, Still Split, Hope for Hill Net Neutrality Compromise After DC Circuit Ruling
Industry and consumer group officials continued hoping Monday that lawmakers will reach a bipartisan compromise on net neutrality legislation, after the U.S. Court of Appeals for the D.C. Circuit in Mozilla v. FCC last week upheld parts of the FCC 2018 order rolling back 2015 reclassification of broadband as a Communications Act Title II (see 1910010018). They didn't stray during a Congressional Internet Caucus Academy event from their longstanding belief that a final statute either should or shouldn't have a basis in Title II and mirror the rescinded 2015 net neutrality rules (see 1910010044).
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USTelecom Vice President-Policy and Advocacy Kristine Hackman articulated the continued divide. Her group believes it's possible for Congress to construct “a modern, innovative” net neutrality framework that institutes consumer protections and “clear lines on the road,” she said. There's “a lot of overlap” on consumer protections between the Democrats' House-passed Save the Internet Act (HR-1644), which would reinstate 2015 rules (see 1904100062), and Republican-led proposals. ISPs “just don't want to have the heavy-handed regulatory regime” imposed by Title II, Hackman said.
“Everybody agrees that there should be” a law, but there's been no movement on the issue “because we're fighting mostly about labels,” between using Title I or II as a legal basis for enforcing the rules, said Latham & Watkins' Matthew Brill, who represents NCTA. “We're never going to” reach a compromise “if we're debating” on that basis. “Congress doesn't need to endorse” any of the FCC's past or present net neutrality rules in a new law, he said.
The “time is certainly ripe for Congress to take up” net neutrality, but stakeholders should “be careful when we talk about compromise that we aren't trading away fundamental protections or ignoring the vast amount” of past work on previous rules, said New America Open Technology Institute Senior Policy Counsel Sarah Morris. Lawmakers must remember “the significant support” the 2015 rules have “on a bipartisan basis” and use that order “as the best practice for what any further legislation should cover.” Morris noted HR-1644 is substantially the same as the Senate-passed 2018 Congressional Review Act resolution of disapproval aimed at reversing rescission of the 2015 rules (see 1805160064).
Mozilla Internet Policy Manager Ferras Vinh said a Title II basis should be a crucial part of a future statute because it would allow the FCC to do enforcement under the general conduct standard and to guard against practices like zero rating that could be “dangerous for innovation online.” A revived general conduct standard is needed to help small companies expand, he said: “It's not about Google or Netflix or Facebook, it's about the next companies” that might emerge.
Officials sparred on how state governments should follow up on the Mozilla finding that the FCC can’t pre-empt state net neutrality laws with its 2018 order. States can and should “move farther and innovate and step in to fill the void” left by FCC rescission, including to “protect consumers from some of the monopoly leverage that ISPs have,” Vinh said. “States might move farther” than the FCC could in its 2015 order on issues like rate regulation. “This does open up a lot of opportunities in the states and provides more clarity” to those governments concerned about the “legitimacy” of the pre-emption language, Morris said.
Hackman and Brill cautioned the ruling doesn't prevent the FCC from pre-empting state laws it views as in conflict with national law under the Constitution's supremacy clause. “If states do see this as an innovation to legislate, we're going to” end up with a “patchwork” of net neutrality laws, which will conflict with broadband's status as an inherently interstate service, Hackman said. “There is no role for states to play in regulating” broadband, unlike “the traditional fights we've had” over phone services that traditionally were divided between local and long-distance components, Brill said. “It needs to be solved by Congress.”
Panelists were largely unwilling to comment on President Donald Trump's Monday tweet lauding the D.C. Circuit's decision, which got pushback from Commissioner Jessica Rosenworcel (see 1910070007). Then-President Barack Obama's public 2014 support in favor of Title II reclassification (see 1410140107) shows there's “precedent,” Brill said. Vinh noted “we have some work to do to bring Republicans on board” for stronger protections.