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Analysis: Net neutrality reversal gains support, but hurdles loom

in Opinion/Wisconsin news

By Kelcee Griffis and Michael Macagnone/LAW 360

Congressional Democrats announced this week that they’re gaining steam in their forthcoming effort to nullify the Federal Communications Commission’s December decision to roll back Obama-era net neutrality protections, with one defecting Republican giving the measure a chance of passing the Senate.

Sill, if enough support is rallied for the measure to pass in the Senate, experts surmise that House leaders will be more reticent to back such a movement — even amid the pressures of the looming midterm elections. If the measure passed in Congress, it would still require presidential approval, raising questions about President Donald Trump’s willingness to contradict his appointee at the Federal Communications Commission.

Earlier this week, Democrats reached a key milestone on the effort to overturn the new net neutrality rules in the Senate, as Sen. Ed Markey, D-Mass., announced that they had the 30 co-sponsors to force a Senate floor vote on the resolution. The Congressional Review Act allows both chambers of Congress to overturn a federal agency’s rulemaking through simple majority votes. Republicans currently have a one-seat majority in the Senate, meaning two Republicans can make sure the resolution passes once Democrats force the floor vote.

On Tuesday, Sen. Susan Collins, R-Maine, said she would support the repeal effort. Most Democrats have already come out to support the effort, and if all of them back it, only one more Republican would be needed to pass the measure in the Senate with Collins’ support.

“I think it was a mistake of the FCC to completely overturn the net neutrality rules,” Collins said.

Senate passage of the measure, however, isn’t guaranteed even if it has garnered more than 40 sponsors. The support for the CRA has not been unanimous among Democrats, as Sen. Joe Manchin, D-W.Va., said that he felt a negotiated legislative solution might “make everyone happy,” and if it comes down to the floor vote on the measure, Manchin said “I hope something is worked out before then — it really should be.”

Democrats have said that net neutrality has become a huge issue among younger voters, and Sen. Brian Schatz, D-Hawaii, said “this isn’t a huge issue for lobbyists, but it has become one for millennials.”

Members of Congress “should ask their kids about this,” Schatz said, and later said that the vote on the CRA could be used in the upcoming midterm elections.

The CRA push may have taken over the discussion surrounding the FCC’s proper authority in recent weeks, according to several members of the Senate. On Tuesday, Sen. Bill Nelson, D-Fla., said the effort to reverse the FCC decision was a priority for Senate Democrats in the near term.

“There is a time for that, and this is the time for this,” Nelson said at the press conference with Markey.

Sen. John Thune, R-S.D., the chair of the Senate’s Commerce Science and Transportation Committee told Law360 said that there had been discussions about a reauthorization of the FCC “but I think we are going to have to get past the CRA; the Dems have focused on that.”

Sen. Roger Wicker, R-Miss., the chairman of the Commerce Committee’s Subcommittee on Communications, Technology, Innovation and the Internet, said the chances of the CRA getting through Congress are “remote,” but “it may help us get to a point of agreement.”

“I think there is an appetite to address some of these issues,” Wicker said. “Frankly, I think there has been a level of hysteria [on net neutrality] that has been completely unjustified. This is going to involve a debate about how best to have an open and orderly internet that has the best opportunity of serving a wide swath of the public.”

Looking in from the outside, passing the CRA through the House appears to be a Herculean effort.

“That’s a much tougher sell,” said Mitchell F. Brecher of Greenberg Traurig LLP.  “There’s a very strong conservative, free-market base in the House, and I can’t see a significant number of Republicans in the House breaking ranks on this.”

But House Democrats may be able to gin up a small amount of support based on the fact that it’s an election year and their constituents care about net neutrality, said former FCC Commissioner Michael Copps, who now advises advocacy organization Common Cause.

The net neutrality proceeding notably garnered 23 million public comments before the FCC, and activist organizations are still urging people to call their senators and representatives on the issue.

“All candidates have enough baggage already to carry into the 2018 elections” without further provoking their support base, Copps said.

A spokeswoman for House Speaker Paul Ryan said that House leadership had no interest in pursuing the CRA. Without leadership’s backing, it would take a majority of the chamber — meaning two dozen or more Republicans crossing the aisle — to force a vote.

The ranking member on the House Energy and Commerce Committee’s Subcommittee on Communications and Technology, Rep. Mike Doyle, D-Pa., said that they aren’t close to the 218 members needed to force a vote if the measure passes the Senate.

Aside from the CRA effort, the leading legislation in the House is a measure from Rep. Marsha Blackburn, R-Tenn., known as the Open Internet Preservation Act. Although the bill would prohibit ISPs from throttling or blocking content, Doyle and other Democrats said the fact the bill doesn’t address paid prioritization has been a major sticking point.

“The idea that some people can pay for better service than others just goes against the principles of a free internet,” Doyle said.

Indeed, the bill has angered some bystanders who view it as an attempt to codify a Republican perspective on internet regulation. But others see it as the first meaningful attempt to restore a sense of regulatory certainty.

“I don’t think Blackburn’s bill is opportunistic,” said Bennett Ross, a partner with Wiley Rein LLP. “I think it should be applauded as a vehicle by which reasonable people can come together.”

Public interest would be best served by putting the “CRA sideshow” to the back of the line, Ross said.

However, even if the CRA resolution passes both chambers, it would still encounter another roadblock once it arrived on Trump’s desk.

At the beginning of his administration, Trump elevated Pai from an FCC commissioner to agency chairman, avoiding a potentially lengthy Senate confirmation process for the post. Both have expressed priorities of infrastructure development and deregulation, and Pai led the charge on dismantling the previous net neutrality rules.

Considering that Pai is Trump’s hand-picked agency head, it would be unlikely that Trump would “stab him in the back” by OK’ing a reversal of the most recent FCC vote, said Brecher of Greenberg Traurig.

Regardless of possible outcomes, the use of the CRA to roll back a Republican majority’s decision likely ventures into uncharted waters, said John Kneuer, a former executive branch adviser on telecommunications policy.

“What hasn’t really been tested is the CRA being used by the minority to undo an action by the president’s party,” he said. “We’re in some new territory.”

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