Appetite for Net Neutrality Bill Next Congress Seen Turning on Election

Congressional Democrats were open to continuing to pursue net neutrality legislation even if Biden wins and ushers in an FCC majority favorable to bringing back the 2015 rules. Democratic lawmakers’ net neutrality bill of choice during this Congress has been the Save the Internet Act. HR-1644/S-682 would restore the rules and reclassification of broadband as a Title II service (see 1904100062). The House passed the measure in 2019 (see 1906110038).

“I’d have to sit down” with a president Biden “to have a conversation about what is the preferable” strategy for bringing back a version of the 2015 rules, said lead S-682 sponsor Sen. Ed Markey, D-Mass. What route to take would depend on whether the Democrats wins control of the Senate and the extent of the majority, he said. Markey is expected to easily win reelection (see 2010140048).

Sen. Richard Blumenthal, D-Conn., believed legislation will be needed even if Biden wins, because “I don’t think we can count on" the FCC alone to bring back the old rules. Other Democratic lawmakers said it’s important for Congress to codify the next iteration of net neutrality rules to ensure more durable regulations.

Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us work on a net neutrality compromise measure he sought last year with Sen. Kyrsten Sinema, D-Ariz. (see 1903120078) has long since “slipped to the back burner.” A similar push for a legislative deal in the next Congress “isn’t a particularly good idea,” he said. The “light-touch regulation that this current [FCC] has had made us a huge success story during” the pandemic (see 2009100005).

GOP's View

“While European platforms were shutting down and it was hard to get all the traffic through elsewhere around the globe, we had no such problems in the U.S. because our light-touch regulation had encouraged more buildout” that ensured “we had more capacity,” Wicker said. The “parade of horribles” that the 2015 rules’ supporters claimed would follow rescission also “hasn’t occurred,” so “I think we’ve been vindicated there. I can’t imagine why policymakers or the American public would want to change that.”

The chance of a compromise “probably depends on what happens in the presidential election,” said Senate Communications Subcommittee Chairman John Thune, R-S.D. “If Trump wins, I think the Democrats will be more likely to make a deal. If he doesn’t, they’re going to try to put their folks into the FCC and overturn” the rescission. “That’s the problem we’ve argued all along … for why we need a legislative solution: to create permanence and certainty instead of having this back and forth.”

The legislative route will likely remain a priority for Democrats “if they hold at least one chamber and the presidency” in 2021, said a telecom lobbyist who follows the party’s Capitol Hill deliberations. Enacting a bill will be much easier if Democrats control the White House, House and Senate, but they’re “not going to look at divided government as a reason to wait.” Hill Democrats vowed Tuesday to continue fighting to restore the 2015 rules, after the FCC voted 3-2 to approve an order to address questions raised by the U.S. Court of Appeals for the D.C. Circuit in 2019 (see 2010270035).

“The presumption is that the FCC” would take the lead in setting new net neutrality rules, “given the challenges in getting legislation on any broadband regulatory framework passed,” said Covington & Burling’s Matt DelNero. “There has been interest” for years in net neutrality legislation, but that “ebbs and flows.”

“I don’t think you’re going to see the same kind of concerted effort that happened a decade ago,” when Hill Democrats attempted to reach a legislative deal before the 2010 election (see 1009300079), said Internet Innovation Alliance honorary Chairman Rick Boucher, a Democratic ex-House Communications Subcommittee chairman from Virginia who was involved in those talks. There “may be some activity on net neutrality” next Congress, but the issue has “taken a back seat” to other tech policy. He cited the push for broadband funding as part of pandemic aid or an infrastructure package and revamping Communications Decency Act Section 230 (see 2010220055).

If Congress and the FCC decide to try again on net neutrality, they will have an easier time enacting a statute that draws a legal basis from Communications Act Title I and 1996 Telecom Act Section 706, Boucher said: The D.C. Circuit “was very explicit that the strong grant of authority that’s contained” in Section 706 is a sound legal basis for net neutrality rules.

End Pingpong?

“There’s general agreement that we need legislation” even in a Democratic trifecta, “not just to end the game of pingpong but also because you now have" 6-3 majority-conservative Supreme Court that “will say Congress has to actually delegate authority to the FCC to adopt net neutrality rules,” said Georgetown Law Institute for Technology Law & Policy's Gigi Sohn. “You want Congress to settle the authority question and the rules question.” If “Democrats hold all the levers, it’s going to happen,” she said. If Republicans retain control of the Senate, that “doesn’t mean” passage of a measure “is not going to happen, but it’s going to be more difficult."

“Net neutrality is an issue that will deliver a small group of voters who are voting on a slate of progressive far-left issues,” said Aalborg University visiting researcher Roslyn Layton, an American Enterprise Institute visiting scholar. Those voters “are where the energy is in the [Democratic Party], and they want” net neutrality as part of a larger agenda. Democrats had been seen as pushing for stronger net neutrality rules as a way of “making Silicon Valley happy,” and that attitude now seems to contradict recent policy initiatives like House Antitrust Subcommittee Democrats’ report on competition in the digital economy (see 2010060062), Layton said. “If you’re hammering Silicon Valley” on antitrust issues, “why would you be giving them a reward?”

Few of the Democratic candidates in GOP-held Senate seats have stated positions on net neutrality. Many Republican incumbents and Democratic challengers cite interest in expanding rural broadband access.

Democratic Montana Gov. Steve Bullock, who’s running against Republican Sen. Steve Daines, tweeted earlier this month that if elected, he will “lead” the fight to restore the 2015 rules. He cited his 2018 executive order requiring telecom providers that contract with Montana to follow net neutrality principles (see 1801220050). Democratic Georgia Senate candidate Jon Ossoff, who’s running against incumbent Republican Sen. David Perdue, also committed to supporting a return to the 2015 rules.