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FCC Discrimination Rule Divide

Feb. 2 CR Passage, USF Contributions Revamp Bill Mark Hill Thanksgiving Recess

Broadband items drew some lawmakers’ attention Wednesday night and Thursday as Capitol Hill fully shifted into the week-plus Thanksgiving recess. A trio of non-Commerce Committee-affiliated senators weighed into the debate over expanding the USF contribution base, while leaders of the House and Senate Commerce committees sided along party lines on the FCC’s 3-2 Wednesday vote to adopt rules aimed at curbing digital discrimination (see 2311150040). President Joe Biden, meanwhile, is set to sign off before Friday night on a continuing resolution to fund the FCC, FTC, NTIA and other Commerce Department agencies at FY 2023 levels through Feb. 2 (HR-6363) after the Senate joined the House Wednesday night in passing the measure.

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The Senate voted 87-11 to pass HR-6363, as expected (see 2311150072), thwarting a government shutdown that would otherwise have begun Friday night. The CR buys Congress time to work through FY 2024 appropriations measures covering the FCC, FTC, NTIA and other agencies, but the House’s path forward on those bills remains unclear. House leaders pulled the Appropriations Commerce, Justice and Science Subcommittee funding bill (HR-5893) from floor consideration Wednesday once it became clear the measure wouldn’t pass in its current form. HR-5893 includes cuts to NTIA, other Commerce Department agencies and the DOJ Antitrust Division (see 2311090073). Chamber leaders previously pulled the FY24 funding measure covering the FCC and FTC (HR-4664) and the Appropriations Labor, Health and Human Services, Education and Related Agencies Subcommittee FY24 bill (HR-5894), which deleted advance money for FY 2026 (see 2311140073).

The House voted 198-225 Wednesday against the Rules Committee’s proposal for floor consideration of HR-5893. The rule would have allowed a floor vote on an amendment from Rep. August Pfluger, R-Texas, allocating NTIA an additional $1 million to work with the FCC and DOD to write a report to lawmakers on China's positions on reallocating spectrum from military to commercial wireless use, including its stances at the upcoming World Radiocommunication Conference in Dubai.

Sen. Markwayne Mullin, R-Okla., led filing Thursday of the USF-focused Lowering Broadband Costs for Consumers Act. The measure would require the FCC to complete a rulemaking within 18 months to expand USF’s contribution base to include social media platforms, streaming services and most other major edge providers. It would also direct the FCC to complete a rulemaking to “adopt a new” high-cost mechanism “that will provide specific, predictable, and sufficient support” for participating ISPs. Sens. Mark Kelly, D-Ariz., and Mike Crapo, R-Idaho, are also leading sponsors. Top members of the House and Senate Communications subcommittees have eyed USF revamp issues all year (see 2309210060).

The Lowering Broadband Costs for Consumers Act would exempt edge providers that either earned less than $5 billion during the most recent year or “transmitted less than 3 percent of the estimated quantity of broadband data that was transmitted” in the U.S. during the same period. It would also exempt an edge provider or ISP “if the revenue of the provider is such that” its level of USF contribution “would be de minimis.” Mullin’s office cited support from NTCA, USTelecom, WTA and two Oklahoma providers that have previously called for a USF revamp: Chickasaw Telephone and Totah Communications (see 2305030005).

House Commerce Committee Chair Cathy McMorris Rodgers of Washington and Communications Subcommittee Chair Bob Latta of Ohio joined other Republicans in criticizing the FCC’s digital discrimination rules, which many party-affiliated lawmakers claim stray far from authorizing language in the 2021 Infrastructure Investment and Jobs Act (see [Ref 2311130059]). The new rules “are just another step toward Biden's broadband take over,” Rodgers and Latta said Wednesday night. “This move puts onerous requirements on our nation's broadband providers and will lead to government bureaucrats micromanaging Americans' Internet access. It’s time for the Biden administration to end this effort to enact more government controls, which will ultimately lead to higher costs and worse services for Americans.”

Senate Communications Subcommittee Chairman Ben Ray Lujan of New Mexico conversely sided with other Democrats in praising the rules, which he urged the FCC in August to adopt. “This is an important moment to ensure everyone … has access to broadband,” Lujan said Thursday. “This FCC vote is a step in the right direction, but our work is not finished. I’ll continue working with my colleagues alongside the FCC to find solutions that expand internet access, ensuring Americans can fully participate in today’s digital world.”