As expected, House and Senate Democrats outlined a net neutrality bill Wednesday (March 6), the Save the Internet Act, that would nullify the FCC's Restoring Internet Freedom order and codify the 2015 Open Internet order and its rules against blocking, throttling, paid prioritization.
That order also had a general conduct standard for conduct not falling into those categories.
House Speaker Nancy Pelosi (D-Calif.) said the bill was countering the Trump assault on the Internet and House Energy & Commerce Committee chair Frank Pallone (D-N.J.) said his committee would move quickly. There will be a legislative hearing on the bill March 12.
At a press conference announcing the bill, there was talk about price gouging, data throttling, abusive practices, and putting a cop back on the beat.
“The free and open Internet is a pillar of our democracy,” said Pelosi. “It is an honor to join Democrats from both sides of the Capitol to introduce this strong legislation, which honors the will of the millions of Americans speaking out to demand an end to the Trump assault on net neutrality. Democrats are proudly taking bold action to restore net neutrality protections: lowering costs and increasing choice for consumers, giving entrepreneurs a level playing field on which to compete, helping bring broadband to every corner of the country, and ensuring that American innovation and entrepreneurialism can continue to be the envy of the world.”
“The Save the Internet Act puts consumers first by once again putting a cop on the beat at the FCC and protecting them from abusive and discriminatory practices by internet service providers,” said Pallone. “This legislation protects a free and open internet, and I look forward to moving it through the Committee soon.”
The bill mirrors the Congressional Review Act resolution in the last Congress that would have nullified the Restoring Internet Freedom order and restored the old rules, but giving Democrats hope was that while that passed in the Senate, then controlled by Republicans, it failed in the House, now controlled by Democrats. But it barely passed in the Senate with three Republican votes. Democrats have two fewer seats in the Senate in this Congress.
Tellingly, the bill is co-sponsored by the same two legislators, Sen. Ed Markey (D-Mass.) and Rep. Mike Doyle (D-Pa.), who spearheaded the CRA effort.
Both Republicans and Democrats say Congress needs to clarify the government's authority over net neutrality. The Republicans have introduced bills that would restore the rules against blocking, throttling and anti-competitive paid prioritization, but would not restore the FCC's "general conduct standard," which was a way to get at conduct that might not fall under those rules, including due to technology not yet in the market.
One of the big issues with imposing new rules is whether Democrats could accept them without that general conduct standard in the package. NCTA-The Internet & Television Association president Michael Powell has signaled NCTA would support legislation that reinstated the FCC's 2015 rules—against blocking, throttling and paid prioritization—but that does not include the general conduct standard.
Democrats have said the legislation that restores only those rules and not the ability to reach other conduct is too limiting.
ISPs see that undefined power to regulate conduct yet to materialize or anticipate as providing the same kind of uncertainty as the constant legal ping-pong game surrounding the FCC attempts to regulate or deregulate internet access without clear direction from Congress on what its authority is.
Currently, the FCC has deeded most net neutrality oversight to the Federal Trade Commission, which already has oversight over edge-providers, which the FCC does not.
Elsewhere a federal appeals court is considering a challenge to the FCC's reclassification of internet access as a Title I information service. If the case went against the FCC--it will likely be decided in the second quarter--the rules could return sooner, but lacking the Congressional clarification of legislation and likely headed to the Supreme Court.
“The FCC’s return in 2017 to the bipartisan, light-touch approach to Internet regulation has been a success. This time-tested framework has preserved the free and open Internet," said Tina Pelkey, spokeswoman for FCC chair Ajit Pai. "It has promoted transparency in order to better inform consumer choice. It has unleashed private investment, resulting in more fiber being deployed in 2018 than any year before and download speeds increasing by an astounding 36%. And it has proven wrong the many hysterical predictions of doom from 2017, most notably the fantasy that market-based regulation would bring about ‘the end of the Internet as we know it.’ The Internet in America today is free and vibrant, and the main thing it needs to be saved from is heavy-handed regulation from the 1930s.”
House Energy & Commerce Committee Republican leaders were not fans of the 2015 Open Internet order's restoration either.
In a joint statement, Reps. Greg Walden (R-Ore.), Bob Latta (R-Ohio), and Cathy McMorris Rodgers (R-was.), who have each introduced their own non-Title II-based net neutrality rule legislation, said in a joint statement.
"Republicans and Democrats agree, a free and open internet is fundamental to our society. Right now, without Title II, the internet remains a key driver of economic growth. Let’s come together to ensure that continues, because all sides want a permanent solution.
Instead of looking to the extremes, and discarding twenty years of bipartisan consensus, we can come together on shared principles to address blocking, throttling, and paid prioritization.
"Title II is not the answer, it paves the way for a regulated internet, an internet that does not protect the consumer nor allow for American ingenuity to thrive. We can do better."
The Internet Association, whose members include edge providers from Amazon (and Facebook and Google) to Zillow, said it supported the bill, but also signaled it would support something Republicans could sign on to.“Internet companies believe that consumers should have access to the entire internet, free of blocking, throttling, or paid prioritization by ISPs. There’s overwhelming support – including from the internet industry – for enforceable net neutrality rules, and Congress should pass bipartisan legislation that provides consumers the protections they deserve," said Melika Carroll, SVP of global government affairs. "IA remains outcome oriented to protect consumers on this critical issue and supports the Save The Internet Act because it would reinstate these protections for all Americans through the 2015 Open Internet Order. The internet industry would also support bipartisan Congressional efforts that restore strong, enforceable net neutrality protections and will continue to fight for a free and open internet in the courts as an intervenor in Mozilla v. FCC.”