FCC trumps Congress in net neutrality fight

FCC trumps Congress in net neutrality fight
© Getty Images

New proposed Internet rules from the Federal Communications Commission (FCC)  are sidelining Congress in the fight over net neutrality.

Some lawmakers, particularly on the Republican side of the aisle, say they remain committed to moving forward with parallel legislation. But that initiative may be rendered irrelevant by the tough new rules on the horizon.

Legal challenges to the FCC’s rules are now likely to take center stage.

“Now it just heads to the courts,” said Rep. Greg WaldenGregory (Greg) Paul WaldenHouse panel investigating private equity firms' role in surprise medical billing Hotel industry mounts attack on Airbnb with House bill Wave of GOP retirements threatens 2020 comeback MORE (R-Ore.), the head of the House subcommittee on Communications and Technology.

“I think they’re on the wrong path, I think they made a wrong decision and I think they’re going to have a lot of explaining to do in the courts, where this will spend its life.”

ADVERTISEMENT

For its new Internet rules, the FCC will be relying in large part on legislation that is 80 years old. Critics say that’s a blunt tool for regulating something as dynamic as the modern Internet and likely won’t meet judicial muster.

In order to give the commission a firmer legal footing — and to preempt it from enacting tough rules that will give it strong new powers — Republicans this year launched an effort to write a new law clarifying which powers the FCC has to regulate the Internet.

While some Democrats have been open to negotiations, none have publicly signed on to a draft bill floated by GOP leaders of the House and Senate Commerce Committees earlier this year. Democrats think the GOP proposal seeks to weaken the FCC.

“It’s a terrible bill,” said Rep. Anna EshooAnna Georges EshooOvernight Health Care: Public's view of drug companies sinks to record low in poll | NYC declares end to measles outbreak | Health advocates fear Planned Parenthood funding loss could worsen STD crisis Overnight Health Care — Presented by PCMA — Planned Parenthood ousts its president | Harris releases drug pricing plan | House Dem drug plan delayed until after recess Democratic chair: Medicare negotiating drug prices not moving before August MORE (D-Calif.), the ranking member on Walden’s subcommittee. “It says ‘net neutrality’ at the top, but it doesn’t resolve what needs to be resolved.”

Though the draft bill would set new rules banning Web providers such as Comcast or Time Warner Cable from blocking or slowing traffic to a particular website, it would also undercut the FCC’s authority in several ways.

Democrats would much prefer the FCC proposal in any event, so they see no particular need to back the alternative legislative effort.

“Any related legislation must be compared to the benefits of the consumer protections and new competition that this FCC proposal delivers,” House Minority Leader Nancy Pelosi (D-Calif.) said in a statement on Wednesday.

The looming regulations are “making it very hard” to get a deal, House Energy and Commerce Committee Chairman Fred UptonFrederick (Fred) Stephen UptonRepublicans pour cold water on Trump's term limit idea The Hill's Morning Report - Can Trump save GOP in North Carolina special election? Wave of GOP retirements threatens 2020 comeback MORE (R-Mich.) told The Hill after FCC head Tom Wheeler announced his plan.

Key Democrats have not entirely ruled out negotiating with GOP lawmakers.

The top Democrat on Upton’s committee, Rep. Frank Pallone Jr. (N.J.), said on Wednesday that he remained open to working with Republicans “to find a truly bipartisan legislative solution.”

Sen. Bill Nelson (D-Fla.), his counterpart in the Senate, said that he “look[s] forward to working with [Senate Commerce Chairman John] Thune [R-S.D.], hopefully in a bipartisan way, as we consider any legislation in the future.”

Verizon and AT&T are expected to sue over the new rules, which could tie the issue up in court for years.

Democrats may see little reason to deal until that process finishes.

“They really have no incentive to negotiate anything now,” said Berin Szoka, the head of the TechFreedom think tank and an opponent of the tough new rules.

“This probably does take the wind out of the sails of getting anything passed, or at least signed by the president, until after litigation has concluded,” he added.

Democrats certainly are feeling the wind at their backs.

After Wheeler’s announcement on Wednesday, net neutrality activists across the Internet — who had helped to drive more than 4 million comments into the FCC — claimed a resounding victory.

“Let’s see what the next move is, but I think the announcement has encouraged the netrooters across the country, the tens of millions of them,” Eshoo told The Hill, referring to the digital activists.

“This is not an inside-the-Beltway issue, and if anyone thinks that, no one is looking.”

Major Web providers have backed the congressional effort, and said that it would end the uncertainty created by lengthy court proceedings. 

Last month, the head of the National Cable and Telecommunications Association told lawmakers in the House that his trade group would strongly support legislation setting "unambiguous rules of the road for [Internet service providers] while also clearly defining the parameters of the FCC’s authority."