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.”

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