National Journal: Congress Chips Away at Net Neutrality as Court Decision Looms

Law­makers are push­ing ahead with two bills that would tweak cer­tain parts of the Fed­er­al Com­mu­nic­a­tions Com­mis­sion’s con­tro­ver­sial net-neut­ral­ity rules—the sig­na­ture In­ter­net-policy achieve­ment of the Obama ad­min­is­tra­tion.

But even as Re­pub­lic­ans try to chip away at the sweep­ing In­ter­net reg­u­la­tions, the real at­ten­tion re­mains fixed on the D.C. Cir­cuit Court of Ap­peals, which is ex­pec­ted to soon rule on the broad­band in­dustry’s law­suit against the FCC.

As long as a Demo­crat is in the White House, the courts pose the only real threat to the reg­u­la­tions, which re­quire that In­ter­net traffic be treated equally. Demo­crats con­sider the rules cru­cial for en­sur­ing that In­ter­net users are free to ac­cess the con­tent of their choice, while Re­pub­lic­ans con­sider them an il­leg­al power grab that will bur­den busi­nesses.

“Every­body is wait­ing on the court de­cision. Every­body is also think­ing about their cam­paigns at home and, of course, their cam­paign con­tri­bu­tions,” said Har­old Feld, the seni­or vice pres­id­ent of Pub­lic Know­ledge, a con­sumer-ad­vocacy group that sup­ports the FCC’s rules. “Voters do care if you have done ab­so­lutely noth­ing. … You have to show you haven’t been spend­ing the whole two years play­ing Mine­sweep­er.”

So while the de­bate over net neut­ral­ity is deeply par­tis­an, Re­pub­lic­ans and Demo­crats man­aged to find a sliv­er of com­mon ground Wed­nes­day by ap­prov­ing the Small Busi­ness Broad­band De­ploy­ment Act by a 411-0 vote.

The bill would ex­pand an ex­emp­tion for small In­ter­net-ser­vice pro­viders (those with few­er than 250,000 sub­scribers) from the “trans­par­ency” por­tion of the net-neut­ral­ity rules, which man­dates that com­pan­ies pub­licly dis­close their net­work-man­age­ment prac­tices. After ne­go­ti­ations with Demo­crats, Re­pub­lic­ans agreed to end that ex­emp­tion after five years. The le­gis­la­tion wouldn’t af­fect the core of the rules, which bar In­ter­net pro­viders from block­ing web­sites, se­lect­ively slow­ing down traffic, or cre­at­ing spe­cial “fast lanes” for com­pan­ies that pay.

While most Re­pub­lic­ans would prefer to re­peal the reg­u­la­tions al­to­geth­er, they see the trans­par­ency carve-out for small busi­nesses as a change that they can ac­tu­ally pass in­to law. The White House has said that, while it is “strongly com­mit­ted to a free and open In­ter­net,” it will not op­pose the House bill.

“This le­gis­la­tion will pro­tect small busi­nesses and ul­ti­mately be­ne­fit con­sumers,” said House En­ergy and Com­merce Com­mit­tee Chair­man Fred Up­ton, a Michigan Re­pub­lic­an. “Keep­ing these en­tre­pren­eurs fo­cused on lay­ing fiber, build­ing towers, and im­prov­ing ser­vice means a bet­ter In­ter­net ex­per­i­ence for their cus­tom­ers, and more jobs.”

Rep. Dave Loeb­sack, an Iowa Demo­crat, called the bill a “com­mon-sense, bi­par­tis­an meas­ure” that will give “small In­ter­net-ser­vice pro­viders throughout the coun­try flex­ib­il­ity to fo­cus their re­sources on de­ploy­ing broad­band and serving our con­stitu­ents.”

Sen. Steve Daines, a Montana Re­pub­lic­an, and Sen. Joe Manchin, a West Vir­gin­ia Demo­crat, plan to of­fer a coun­ter­part bill as an amend­ment to FCC reau­thor­iz­a­tion le­gis­la­tion.

While the small-busi­ness bill won un­an­im­ous sup­port in the House, Re­pub­lic­ans are also push­ing ahead with a more par­tis­an change to the FCC’s rules. The House En­ergy and Com­merce Com­mit­tee ap­proved le­gis­la­tion on Tues­day that would bar the FCC from reg­u­lat­ing the rates that broad­band pro­viders charge for their ser­vice. While both Pres­id­ent Obama and FCC Chair­man Tom Wheel­er have said they don’t in­tend to dic­tate broad­band re­tail prices, Demo­crats are wor­ried that the lan­guage of the bill could ser­i­ously ham­string the FCC.

It could, for ex­ample, keep the FCC from go­ing after wire­less pro­viders that ex­empt favored con­tent from data caps, they warn. “I can­not sup­port a bill that pre­vents the agency from pro­tect­ing con­sumers from dis­crim­in­at­ory prac­tices,” said Rep. Frank Pal­lone, the top Demo­crat on the com­mit­tee. “And I can­not sup­port a bill that un­der­cuts the FCC’s net-neut­ral­ity rules.”

It re­mains un­clear wheth­er Re­pub­lic­ans will try to scale back the bill to win over Demo­crats or wheth­er they’ll push it ahead in par­tis­an votes. But no mat­ter the fate of their rate-reg­u­la­tion bill, the real crit­ic­al mo­ment for the net-neut­ral­ity rules will likely come when the D.C. Cir­cuit is­sues its de­cision.

A co­ali­tion of ma­jor broad­band pro­viders sued the FCC, ar­guing that the agency over­stepped its au­thor­ity and is vi­ol­at­ing their con­sti­tu­tion­al rights. A pan­el of the D.C. Cir­cuit heard or­al ar­gu­ments in the case in Decem­ber, and is ex­pec­ted to is­sue its de­cision this spring.