Broader Debate on Internet Regulation Overtakes Net-Neutrality Fight

Capitol Hill has never been more united in favor of bright-line rules. But with the debate morphing into a proxy for internet regulation writ large, a legislative solution is further away than ever.

House Spaker Nancy Pelosi, joined by Senate Minority Leader Chuck Schumer, announces the "Save The Internet Act" during an event at the Capitol on March 6.
AP Photo/J. Scott Applewhite
March 13, 2019, 8 p.m.

The congressional debate over net neutrality has never been a particularly pleasant one. But if Tuesday’s meeting of the House Energy and Commerce Communications and Technology Subcommittee is any indication, the fight is set to reach new levels of nastiness.

In a hearing meant to examine a net-neutrality bill introduced by Democrats last week, lawmakers impugned the integrity of a witness, shot snide remarks at one another, and repeatedly accused their colleagues of acting in bad faith. Republicans, in particular, were upset that Democratic leadership had failed to consider a trio of bills they introduced in February.

“Sadly, the majority party had little outreach to us, which means this bill will die—die—in the Senate,” said GOP Rep. Pete Olson. “It’s dead. And so this is just plain messaging.”

By the end of the hearing, Rep. Michael Doyle was tired of Republicans complaining that their own net-neutrality proposals had been ignored. “I know that after being in the majority for so long, it might be difficult for some of my friends to recognize they’re not anymore,” the subcommittee chairman said. “The proper approach would be to talk to us before you drop bills.”

With all the vitriol, you’d expect Democrats and Republicans to be light years apart on the central question of net neutrality: whether internet service providers should be allowed to block, slow down, or prioritize certain web traffic. Yet that’s simply not the case—after years of Republican hedging, there’s now a clear congressional consensus in favor of the bright-line rules to prevent internet providers from pursuing those activities.

“Blocking, throttling, paid prioritization, reasonable rules for network transparency, things like that, are all things we ought to agree on,” said Senate Commerce Communications, Technology, Innovation, and the Internet Chairman John Thune. “So why not fix part of that and create some certainty?”

But the reason for the ongoing logjam is clear. After well over a decade of debate, the fight over net neutrality has shifted from a struggle over bright-line rules to a broader battle over an obscure provision of the Communications Act of 1934 that governs the regulation of the telephone industry and other utilities. Known in telecommunications circles simply as Title II, the provision was the legal rationale through which President Obama’s Federal Communications Commission initially enacted net-neutrality rules in 2015.

These days, Title II is increasingly seen by Democrats as the key to unlocking not only net-neutrality rules, but a whole menu of rights and protections for internet users. Republicans, meanwhile, view Title II as an outdated provision that would imbue the FCC with the unbridled authority to fix prices, set ever-more-aggressive regulations, and generally make life difficult for the internet industry.

The Democratic legislation released March 7 and debated this week enshrines Title II as the central authority through which a newly empowered FCC would flex its muscle. That makes it a dead letter for Republicans in both chambers.

“I’m not quite sure why the Democrats want to give President Trump and the Ajit [Pai]-led FCC incredible new and unbridled authority in this space, but apparently they’re hell-bent to do that,” said Rep. Greg Walden, the ranking member of the House Energy and Commerce Committee.

Resistance is even more pronounced in the Senate, where Democrats will need to attract significant GOP support.

“I do think there would be broad bipartisan support for some of the things that we’re talking about doing,” Thune said. “And it’s just unfortunate that the obsession with Title II gets in the way of actually agreeing on those things.”

There’s some quiet support for those viewpoints on the other side of the aisle. “I’ve had arguments with the organizations with whom I have common cause about the holding up of Title II as a sort of sine qua non of our negotiations,” said Sen. Brian Schatz, a Democrat who attempted to find compromise with Thune during the last congressional cycle. “Not that I have any objection to using Title II; it’s just that I didn’t think that’s what we were fighting over.”

But Schatz admitted that he’s distinctly in the minority on that point. And Matt Wood, the vice president of policy at the progressive tech group Free Press and one of the panelists at Tuesday’s hearing, said the net-neutrality effort on the Left has moved far beyond the issues of blocking, throttling, and paid prioritization that once defined the debate.

“We are not net-neutrality advocates; we are internet-user advocates,” Wood said. “So net neutrality is a big part of that, but it’s not the only part. And that’s why we’d prefer to have the full suite of rights back, not just a few of them that are given to us—given only in trade for tying the FCC’s hands on all the others.”

Doyle repeatedly insisted that his bill would block the FCC from regulating through some of the outdated provisions of Title II. “I think that’s the part that a lot of members in the minority may not be hearing, may not realize,” he told reporters after Tuesday’s hearing.

But right-leaning telecom experts remain skeptical that a future FCC, operating under restored Title II authorities, could be reined in by any piece of legislation. “The nature of this agency is mission creep,” said Brent Skorup, a telecommunications fellow at the libertarian Mercatus Center.

Like Wood, Skorup saw an accelerating shift away from the bright-line rules of net neutrality and into a larger debate on internet governance. “You can kind of ignore the three so-called bright-line rules,” Skorup said, arguing that a Title II regime “is so open-ended that it captures the other rules, and it includes many more that will be, I’m sure, discovered in time.”

That means that even as both sides now agree on the importance of net-neutrality rules, the increasing focus on Title II bodes poorly for the passage of a bill this legislative cycle.

“I don’t see any imminent end to this,” Skorup said. “The net-neutrality idea has been around since 2002 or 2003, and here we are 15 years later and absent a change in president and in Senate control, I don’t see much moving in this area.”

“I think this only gets resolved if we have a different president,” Schatz said.

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