Congress looks to pre-empt Web rules

Congress looks to pre-empt Web rules
© Greg Nash

Lawmakers are scrambling to get out ahead of the Federal Communication Commission’s forthcoming net neutrality regulations, with Democrats and Republicans planning pre-emptive strikes that could disrupt the rules.

As a pair of Democratic lawmakers introduced legislation on Wednesday to prevent “fast lanes” on the Internet, GOP lawmakers had begun a separate effort to block the agency from regulating the Internet like a public utility, a change it could make with new rules scheduled to be released next month.

“We think it’s important to get out ahead of the FCC to show people that there is a better way,” incoming Senate Commerce Committee Chairman John ThuneJohn Randolph ThuneImpeachment threatens to drown out everything Republicans show signs of discomfort in defense of Trump   Embracing President Mike Pence might be GOP's best play MORE (R-S.D.) told reporters on Wednesday.


The Republican bill is still in the early stages and so far has circulated among just a few offices on Capitol Hill. But time is of the essence for Republicans aiming to undercut the FCC’s vote on Feb. 26.

Lawmakers would like “to encourage the FCC to hold off until we have an opportunity to do something legislatively on it,” Thune said.

“I kind of hope [the FCC] would give us an opportunity to do that, but it sounds like they’re going to go forward anyway,” he added.

Indeed, an FCC spokeswoman indicated that the agency seems unlikely to delay its planned vote because of Congress’s actions. 

“Chairman Wheeler believes it is important to move forward as quickly as possible to protect consumers, innovation and competition online,” spokeswoman Kim Hart said in a statement to The Hill.

Republicans in both chambers will huddle for separate strategy sessions on Thursday to discuss the issue, as well as other items on their agenda for the year, members said.

“This is a complicated issue, and the substance of it is just now being formulated,” said Sen. Roger WickerRoger Frederick WickerHillicon Valley: Trump official declines to testify on trade protections for tech | Senators call for better info-sharing on supply chain threats | Apple pulls app after Chinese pressure Key Democrat presses FTC over Facebook settlement's 'dangerous precedent' Cyber rules for self-driving cars stall in Congress MORE (R-Miss.), a member of the Commerce Committee who is expected to lead the Communications and Technology Subcommittee.

The problem for many lawmakers is that current law does not specifically outline how the FCC should regulate Internet service providers such as Comcast and Time Warner Cable. The law governing the commission’s authority was written in 1996, when dial-up Internet was cutting-edge and before a service like Netflix or Spotify could have been feasible.

In the absence of legislation, the FCC has tried to piece together rules based on its existing authorities — with results that disappointed many proponents of strong rules.

Last year, a federal appeals court tossed out the commission’s 2010 rules, deciding the FCC had violated self-imposed boundaries by treating broadband Internet like a “telecommunications service” similar to phone service, instead of an “information service,” as the Web is currently classified.

In order to issue new rules, many liberals and Web activists — as well as President Obama — have called for the agency to reclassify Internet service and regulate it with the same authority it uses for traditional phone lines, under Title II of the Communications Act. When the FCC issues the rules next month, many expect it to heed the call. 

For Republicans, the goal is to block that option, which they claim would amount to excessive regulation of the Internet.

“It’s really the Title II debate; it’s mixing new technology with very old communications law,” said Rep. John Shimkus (R-Ill.), a member of the Energy and Commerce Committee. “Our position is to address that concern.”

“Net neutrality under Title II is government control,” he added.

It’s unclear whether Democrats will sign on.

Sen. Bill NelsonClarence (Bill) William NelsonBottom Line Bottom Line Media and candidates should be ashamed that they don't talk about obesity MORE (D-Fla.), the ranking member of the Senate Commerce panel, has said  he has had conversations with Thune about net neutrality but declined to discuss his feelings about the plan on Wednesday.

Instead, some Democrats have been more concerned about the possibility that weak rules would lead to “fast lanes” on the Internet.

On Wednesday, Sen. Patrick LeahyPatrick Joseph LeahyRand Paul calls for probe of Democrats over Ukraine letter Senator questions agencies on suicide prevention, response after Epstein's death in federal custody During impeachment storm, senators cross aisle to lessen mass incarceration MORE (D-Vt.) and Rep. Doris Matsui (D-Calif.) introduced bills to ban those “fast lanes,” in which Internet service companies charge websites such as data-heavy Netflix for faster access to customers.

“Our economy and the Internet ecosystem cannot afford ‘pay for priority’ schemes or Internet fast lanes,” Matsui said in a statement.

The two introduced the same legislation last year, after the FCC released a draft version of its new rules that would have permitted business negotiations for faster service, formally known as paid prioritization. It failed to move forward at the time and seems unlikely to gain much traction this year.  

While Thune declined to discuss specifics of his bill on Wednesday, he said that the goal was to write something that Democrats could support.

“I think there are ways of ... providing the consumer protections that Democrats say they want short of creating a Title II reclassification, heavy regulatory type regime, which is where the FCC’s headed,” he said.

Other Republicans may also prove to be a problem for the effort.

Some GOP lawmakers have opposed any type of regulation on the Internet, which they view as unnecessary government meddling in private business. Even a “light-touch” path like the one Thune described runs the risk of inflaming some passions.

“It’s a leap to go from opposing any rules to supporting light-touch rules,” said one industry source. “That would be a shift certainly for many Republicans, and that could be an obstacle as well.”

To date, the far right of the GOP seems unwilling to raise a major ruckus. 

“I think if anything is going to be done concerning net neutrality, it should be done through Congress, not through an unelected agency,” said Sen. Ted CruzRafael (Ted) Edward CruzThe Hill's Morning Report - Lawmakers return to work as Dem candidates set to debate Cruz: 'Of course' it's not appropriate to ask China to investigate Bidens Sunday Show Preview: Trump's allies and administration defend decision on Syria MORE (R-Texas), who last year referred to the Web rules as “ObamaCare for the Internet.”

“We should do everything possible to keep the Internet free from crushing taxes or burdensome regulation,” he added. “And it is my hope that if Congress legislates, it will do precisely that.”