By Julian Hattem - 03/21/15 11:42 AM EDT
Cable and telecom industry lobbyists are launching an effort to convince lawmakers to support new legislation that replaces federal Internet regulations.
After the Federal Communications Commission (FCC) issued its new regulations to treat the Web like a public utility, major companies are now sensing an opening to escape what they consider crushing net neutrality regulations.
“The 400-page order really is starting, to us, a process on the hill,” said one telecommunications industry lobbyist who was granted anonymity in order to speak freely about the plans.
“Having this document allows us to start having that new conversation.”
For months, GOP lawmakers have been working on legislation to replace what they see as illegal FCC rules — passed by a 3-2 party line vote at the agency last month — that could lead to a clampdown on the Internet. Supporters of the FCC's move say that it's the only way to ensure that the Internet remains free and open.
In the process, the lawmakers have made a major about face by embracing some net neutrality rules that would ban Internet service providers like Comcast and Verizon from blocking or slowing anyone’s access to a particular website or from establishing “fast lanes” on the Internet. Republicans had previously rejected the need for any rules on accessing the Internet, which they have termed a solution in search of a problem.
“I believe there should be clear rules for the digital road with clear authority for the FCC to enforce them,” Senate Commerce Committee Chairman John ThuneJohn ThuneJudge rejects attempt to stop internet oversight transfer Tech groups file court brief opposing internet transition suit Thune blasts FCC chairman on secrecy MORE (R-S.D.) said in a hearing with the five FCC commissioners this week.
A draft bill floated by Thune and leading House Republicans earlier this year would enshrine in legislation rules to prevent companies from blocking or slowing people’s access to any corner of the Internet or from speeding up traffic to sites that are willing to pay for those “fast lanes.” At the same time, however, the effort would undercut the FCC’s authority in other ways, such as by blunting its ability to take action against things that it sees as obstacles to future growth of the Web.
The measure has been on pause for weeks.
To get it started again, Republican lawmakers will have to find Democrats willing to undermine President Obama by supporting weaker protections than the ones he called for four months ago.
Without those Democrats, any GOP-led effort would be dead in the water, unable to withstand a near-certain veto from the president. Republicans will also need a bipartisan bill to make up for the losses they are likely to suffer on their own side, from conservatives who oppose any notion of federal oversight of the Internet.
The FCC’s new rules are sure to face a court challenge, which poses one potential threat to the protections Democrats support. If they are struck down in court, net neutrality supporters might end up with nothing.
There's also the prospect that a Republican could win the presidency in 2016 and institute a new FCC that undoes the existing rules, which might concern Democrats.
“I’m a little concerned about the litigation risk,” Sen. Brian Schatz (D-Hawaii) said this week, while adding that legislation was “worth exploring.”
Still, Democrats have yet to jump onboard with the GOP lawmakers’ plans.
But now that the FCC’s rules are out — after weeks of editing and revisions, during which they were kept from the public — lobbyists are sensing their best chance yet.
“I think [lawmakers’] staffs have to go through the process of reading the order and doing their own analysis,” said Alan Roth, the senior executive vice president for the U.S. Telecom Association.
“I think it’ll be up to us, in part, to have our lawyers do that analysis and go up and talk to them about what the legal weaknesses are and what the arguments are going to be that we’re going to be making in court,” he added. Roth’s organization has previously said it would go to court over the FCC’s new rules.
The path is very much uphill.
While a few key Democrats have remained open to negotiations, they’ve made it clear that their standards for a bill are high.
Sen. Bill NelsonBill NelsonElection-year politics: Senate Dems shun GOP vulnerables Overnight Finance: Senate rejects funding bill as shutdown looms | Labor Dept. to probe Wells Fargo | Fed to ease stress test rules for small banks Overnight Energy: Judges scrutinize Obama climate rule MORE (D-Fla.), Thune’s counterpart on the Senate panel, has said he supports the idea of a new “Title X” law, so long as it "fully protects consumers, does not undercut the FCC's role and leaves the agency with flexible, forward-looking authority to respond to the changes in this dynamic broadband marketplace."
But liberals might be more willing to deal if they become convinced that the FCC’s rules are more vulnerable than they initially thought.
There is also the possibility that a court could order the rules to be on hold until the litigation is settled, which could mean they don’t take effect for years — possibly not until Obama is out of office.
If that happened, “it’s game set and match” for legislation, said one former congressional aide who now works for the telecom industry.
“Democrats will be knocking on the door to get 100 percent of net neutrality as opposed to [the] 50 percent” odds that the FCC’s order is upheld, they added.
They’re certainly not there yet.
Nelson told Thune this week that “we’re going to have to let this percolate a bit before we can actually sit down and have this consensus-building that you and I are talking about.”
But supporters of legislation say that both sides can offer something the other wants, which could pave the way for a rare moment of compromise.
“It’s just going to take a little bit of time for the reality to be broadly recognized,” said former Rep. Rick Boucher (D-Va.), who is afraid that the FCC's rules could be "washed away" without legislation.
“When it is, there’s a real opportunity to pass a bill.”