Republicans Want to Rewrite Tech Regulation—but They’ll Have to Make Peace With Net Neutrality First

A GOP plan to overhaul a communications law could get bogged down in a partisan battle.

Senate Aviation Operations, Safety, and Security Subcommittee member Sen. John Thune (R-SD) questions a witness during a hearing December 10, 2009 in Washington, DC.
National Journal
Nov. 6, 2014, 3:29 p.m.

With con­trol of the Sen­ate, top Re­pub­lic­ans are go­ing to work on an am­bi­tious plan to over­haul gov­ern­ment reg­u­la­tion of the In­ter­net, tele­vi­sion, and tele­phone in­dus­tries.

Their ef­fort to re­write the Com­mu­nic­a­tions Act could have broad im­plic­a­tions for how we all com­mu­nic­ate and con­sume in­form­a­tion. But the whole plan could col­lapse amid par­tis­an fight­ing over net neut­ral­ity.

The goal of the com­mu­nic­a­tions law up­date isn’t to kill net neut­ral­ity, but it will be hard for Re­pub­lic­ans to avoid the is­sue. They’re fiercely op­posed to any reg­u­la­tion of In­ter­net ser­vice, and many con­ser­vat­ive law­makers will de­mand that Con­gress strip the Fed­er­al Com­mu­nic­a­tions Com­mis­sion of au­thor­ity over the is­sue.

Any bill that would re­peal net neut­ral­ity would face a Demo­crat­ic fili­buster in the Sen­ate and an al­most cer­tain veto from Pres­id­ent Obama. So Re­pub­lic­ans will have to de­cide if their hatred of net neut­ral­ity is stronger than their de­sire to up­date the na­tion’s aging tech­no­logy rules.

It wouldn’t be the first time that net neut­ral­ity ruined an at­tempt to re­write com­mu­nic­a­tions law. In 2006, the House passed an up­date to the Com­mu­nic­a­tions Act from then-En­ergy and Com­merce Com­mit­tee Chair­man Joe Bar­ton, a Texas Re­pub­lic­an, but par­tis­an battles over net neut­ral­ity de­railed the bill in the Sen­ate.

“It’s in­ev­it­able that net neut­ral­ity is go­ing to be a part of this,” a Demo­crat­ic aide pre­dicted.

A Re­pub­lic­an aide for the House En­ergy and Com­merce Com­mit­tee said law­makers are still in the in­form­a­tion-gath­er­ing stage and that it’s too early talk about wheth­er the bill will ad­dress any par­tic­u­lar is­sue.

The Com­mu­nic­a­tions Act, first en­acted in 1934, cre­ated the FCC and out­lined the agency’s powers. It’s the found­a­tion­al law for reg­u­la­tion of every com­pany that trans­mits in­form­a­tion over wires or air­waves. That now in­cludes cable, satel­lite, broad­cast TV, ra­dio, cell phones, land­line phones, and In­ter­net ser­vice.

Over­haul­ing the act is a top pri­or­ity for Sen. John Thune, a South Dakota Re­pub­lic­an who is ex­pec­ted to be­come chair­man of the Sen­ate Com­merce Com­mit­tee. His coun­ter­parts in the House, En­ergy and Com­merce Com­mit­tee Chair­man Fred Up­ton and Com­mu­nic­a­tions Sub­com­mit­tee Chair­man Greg Walden, have already star­ted to col­lect feed­back from in­dustry and ad­vocacy groups on how they should re­write the law.

Nearly every­one agrees that the Com­mu­nic­a­tions Act is out­dated. The law was last up­dated in 1996, when most people were still ac­cess­ing the In­ter­net on dial-up con­nec­tions and be­fore Google even ex­is­ted.

But re­writ­ing the law will be no easy task. Tweak­ing one pro­vi­sion might boost some in­dus­tries while cost­ing oth­ers bil­lions of dol­lars. Some of the na­tion’s biggest and most power­ful cor­por­a­tions are go­ing to be ready to fight for their own in­terests.

Law­makers are ex­pec­ted to re­view the FCC’s sub­sidy pro­grams for rur­al and poor con­sumers, its au­thor­ity over tele­com mer­gers, its man­age­ment of the na­tion’s air­waves, and the vari­ous reg­u­lat­ory perks and ob­lig­a­tions that loc­al broad­cast TV sta­tions have.

But few is­sues are as polit­ic­ally ex­plos­ive as net neut­ral­ity. Sup­port­ers of net neut­ral­ity ar­gue that gov­ern­ment rules are ne­ces­sary to pre­serve the In­ter­net as an “open” plat­form where all traffic is treated equally. They want to pre­vent In­ter­net ser­vice pro­viders like Com­cast from block­ing web­sites or fa­vor­ing some sites over oth­ers.

Re­pub­lic­ans view net neut­ral­ity as a gov­ern­ment takeover of the In­ter­net. They warn that re­strict­ive reg­u­la­tions will only stifle in­vest­ment in broad­band net­works and pre­vent in­nov­at­ive new busi­ness mod­els.

The FCC first en­acted net-neut­ral­ity rules in 2010, but a fed­er­al court struck them down earli­er this year. The FCC un­der Chair­man Tom Wheel­er is ex­pec­ted to en­act new rules as soon as next month.

FCC of­fi­cials are ser­i­ously con­sid­er­ing wheth­er to in­voke the agency’s sweep­ing powers un­der Title II of the Com­mu­nic­a­tions Act, which the agency already uses to reg­u­late phone com­pan­ies. Broad­band pro­viders and Re­pub­lic­ans warn the sec­tion would turn the In­ter­net in­to a pub­lic util­ity, crush­ing the in­dustry un­der heavy-handed reg­u­la­tion. But net-neut­ral­ity ad­voc­ates say Title II is the only way to en­act real pro­tec­tions.

Some Re­pub­lic­ans will prob­ably try to use the new Com­mu­nic­a­tions Act to strip the FCC of net-neut­ral­ity au­thor­ity or at least keep the agency from us­ing its Title II powers. One broad­band in­dustry of­fi­cial said com­pan­ies would hope to re­verse Title II rules with a new Com­mu­nic­a­tions Act, but the in­dustry would be fine leav­ing the FCC some power over net neut­ral­ity.

“This is a once-in-a-gen­er­a­tion op­por­tun­ity here,” a dif­fer­ent broad­band in­dustry of­fi­cial said. “I have a hard time see­ing the de­bate re­volving around net neut­ral­ity.”

Ber­in Szoka, the pres­id­ent of liber­tari­an group Tech­Free­dom and a net-neut­ral­ity skep­tic, said Re­pub­lic­ans should be will­ing to com­prom­ise on the is­sue. “The key is giv­ing the FCC au­thor­ity to deal with core net-neut­ral­ity con­cerns,” he ex­plained.

Har­old Feld, a net-neut­ral­ity sup­port­er and the vice pres­id­ent of con­sumer group Pub­lic Know­ledge, said that for some Re­pub­lic­ans, net neut­ral­ity is like a re­li­gious is­sue. They’re likely to do everything they can to stop FCC rules.

But he also said Thune and oth­er Re­pub­lic­ans don’t want to see the con­tro­versy des­troy their at­tempt to re­write com­mu­nic­a­tions policy. And he claimed Re­pub­lic­ans real­ize the pub­lic is on the oth­er side of the is­sue.

“I think the people who are look­ing to 2016 don’t want to cast them­selves as the hand­maid­ens of spe­cial in­terests,” he said. “If the Re­pub­lic­ans go out there and say, ‘Let’s let Com­cast screw with your Net­flix sub­scrip­tion,’ the Amer­ic­an people are go­ing to be very un­happy.”

What We're Following See More »
Mueller Reports
1 days ago

"The special counsel, Robert S. Mueller III, has delivered a report on his inquiry into Russian interference in the 2016 election to Attorney General William P. Barr ... Barr told congressional leaders in a letter late Friday that he may brief them within days on the special counsel’s findings. 'I may be in a position to advise you of the special counsel’s principal conclusions as soon as this weekend,' he wrote in a letter to the leadership of the House and Senate Judiciary committees. It is up to Mr. Barr how much of the report to share with Congress and, by extension, the American public. The House voted unanimously in March on a nonbinding resolution to make public the report’s findings, an indication of the deep support within both parties to air whatever evidence prosecutors uncovered."

Cohen Back on the Hill for More Testimony
2 weeks ago
Pascrell Ready to Demand Trump Taxes
2 weeks ago

"House Democrats plan to formally demand President Donald Trump’s tax returns in about two weeks, a key lawmaker said Tuesday. They intend to seek a decade’s worth of his personal tax returns, though not his business filings, said Rep. Bill Pascrell (D-N.J.), a senior member of the House Ways and Means Committee."

Cohen's Attorneys Discussed Pardon with Trump Lawyers
2 weeks ago

"An attorney for Michael Cohen, Donald Trump’s former personal lawyer, raised the possibility of a pardon with attorneys for the president and his company after federal agents raided Mr. Cohen’s properties in April, according to people familiar with the discussions. Conversations among those parties are now being probed by congressional investigators."

Judge Rules GSA Must Turn Over Documents on FBI Relocation
2 weeks ago

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.