Republicans Are Desperate for a Net-Neutrality Compromise

Lawmakers are scrambling to find an alternative to expansive utility-style regulations.

National Journal
Brendan Sasso
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Brendan Sasso
Jan. 8, 2015, 8:17 a.m.

For years, fierce op­pos­i­tion to net-neut­ral­ity reg­u­la­tion has been an art­icle of faith for Re­pub­lic­ans.

The party in­cluded the is­sue in its 2012 plat­form, and Sen. Ted Cruz mem­or­ably re­ferred to it as “Obama­care for the In­ter­net.”

But now, with the Fed­er­al Com­mu­nic­a­tions Com­mis­sion head­ing to­ward strin­gent net-neut­ral­ity reg­u­la­tions that would treat the In­ter­net like a util­ity, Re­pub­lic­ans are scram­bling to find an al­tern­at­ive solu­tion.

South Dakota Sen. John Thune, the new chair­man of the Sen­ate Com­merce Com­mit­tee, is work­ing on a com­prom­ise bill that he says would ad­dress the con­cerns of net-neut­ral­ity ad­voc­ates without in­vok­ing util­ity-style powers.

“We think a le­gis­lat­ive route is a bet­ter way to go, and we’ve de­veloped some lan­guage that we think ad­dresses a lot of the con­cerns that Demo­crats have raised, but does it without that heavy reg­u­lat­ory ap­proach that they’re ad­voc­at­ing,” he ex­plained to re­port­ers this week.

A spokes­man for the House En­ergy and Com­merce Com­mit­tee said that Chair­man Fred Up­ton and Com­mu­nic­a­tions Sub­com­mit­tee Chair­man Greg Walden are also try­ing to find a “sus­tain­able bi­par­tis­an path for­ward that won’t end up in court and provides con­sumers the pro­tec­tions they de­serve, the in­nov­at­ive choices they want, and the cer­tainty that will en­sure con­tin­ued in­vest­ment in the In­ter­net.”

Re­pub­lic­ans know that to have any hope of stop­ping the FCC from claim­ing broad new powers over the In­ter­net, they’ll need sup­port from Demo­crats. A straight re­peal of net neut­ral­ity reg­u­la­tions would face a cer­tain veto from Pres­id­ent Obama.

It’s un­clear wheth­er any Demo­crats will sign on to com­prom­ise le­gis­la­tion. Thune ex­plained that he’s aim­ing to pro­duce a bill to pree­mpt an FCC vote (which is cur­rently slated for Feb. 26), but he ad­mit­ted that Demo­crats are more in­clined to wait to see what the agency does.

Sen. Bill Nel­son, the top Demo­crat on the Sen­ate Com­merce Com­mit­tee, de­clined to say wheth­er he’ll back Thune’s ef­forts. Sen­ate Demo­crat­ic Lead­er Harry Re­id vowed this week that any at­tempt to weak­en net neut­ral­ity would be “met with a swift and uni­fied Demo­crat­ic op­pos­i­tion.”

Sup­port­ers of net neut­ral­ity ar­gue that In­ter­net ser­vice pro­viders shouldn’t be al­lowed to block on­line con­tent or fa­vor some web­sites over oth­ers. They fear that a mul­ti­t­iered In­ter­net with “fast lanes” and “slow lanes” would be­ne­fit gi­ant cor­por­a­tions at the ex­pense of users and small start-ups.

Re­pub­lic­ans have long viewed net-neut­ral­ity reg­u­la­tion as un­ne­ces­sary gov­ern­ment con­trol of the In­ter­net. Their sud­den change of heart comes as the FCC ap­pears ready to claim even broad­er au­thor­ity over the In­ter­net.

All in­dic­a­tions are that the FCC will heed Obama’s call for the agency to clas­si­fy broad­band In­ter­net as a “tele­com­mu­nic­a­tions ser­vice” un­der Title II of the Com­mu­nic­a­tions Act.

The FCC first en­acted net-neut­ral­ity rules in 2010, but a fed­er­al court struck them down early last year. The only way to en­act new rules that can hold up in court, In­ter­net act­iv­ists say, is for the FCC to in­voke its sweep­ing au­thor­it­ies un­der Title II, which it cur­rently uses to reg­u­late land­line tele­phones.

FCC Chair­man Tom Wheel­er pro­posed new net-neut­ral­ity rules last May that wouldn’t have used Title II, but he seems to have re­versed course in the face of a massive pub­lic back­lash and Obama’s en­dorse­ment of Title II in Novem­ber.

Speak­ing at the in­ter­na­tion­al CES con­fer­ence in Las Ve­gas on Wed­nes­day, Wheel­er out­lined the ad­vant­ages of us­ing Title II and dis­missed the con­cerns of the broad­band in­dustry that it will stifle growth.

Ap­ply­ing Title II to the In­ter­net is a night­mare scen­ario for In­ter­net pro­viders such as Com­cast, Ve­r­i­zon, and AT&T, who warn that the sec­tion would crush their in­dustry with bur­den­some and an­ti­quated reg­u­la­tions.

The FCC could use Title II to not only over­see how the pro­viders man­age traffic, but also set re­tail prices, im­pose new gov­ern­ment fees, and de­term­ine which cus­tom­ers they have to serve. Wheel­er has said he would waive un­ne­ces­sary pro­vi­sions of Title II, but that has been little com­fort to the broad­band pro­viders.

Real­iz­ing they need a bet­ter strategy than total op­pos­i­tion, the in­dustry groups have been ur­ging Re­pub­lic­ans to mod­er­ate their stance on net neut­ral­ity. Even the old 2010 reg­u­la­tions would be prefer­able to a Title II re­gime for the broad­band pro­viders.

“If they do this un­der Title II, it’s go­ing to cre­ate all kinds of op­por­tun­it­ies for reg­u­lat­ory shenanigans down the road that can be very harm­ful to in­nov­a­tion and very harm­ful to con­sumers,” Thune told re­port­ers.

Passing com­prom­ise le­gis­la­tion will be a tough task. Net neut­ral­ity ad­voc­ates see little reas­on to com­prom­ise just as they are on the brink of a ma­jor vic­tory at the FCC. And it’s hard to ima­gine that con­ser­vat­ives, who for years have de­cried net neut­ral­ity as a gov­ern­ment takeover of the In­ter­net, will sud­denly vote for a bill lead­ing to tough new reg­u­la­tions.

Thune de­clined to dis­cuss spe­cif­ics of his draft bill, but Demo­crats will be un­likely to sup­port any­thing that leaves room for pay-for-pri­or­ity In­ter­net traffic deals.

Demo­crats are also likely to de­mand that the new rules ap­ply to In­ter­net ser­vice on cell phones, even though the 2010 rules largely ex­emp­ted cel­lu­lar ser­vice. AT&T and Ve­r­i­zon are strongly op­posed to in­clud­ing cel­lu­lar ser­vice in the new reg­u­la­tions, and it will be tough for Re­pub­lic­ans to give in on the point. 

—This art­icle was up­dated at 2:56 p.m.

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