House Communications Advances Save the Internet Act; Committee Markup Next

House Commerce also is expected to advance the measure, though Republicans are vowing continued opposition. House Communications GOP members spent significant time during the two-and-a-half-hour Tuesday markup probing what they view as deficiencies in HR-1644's language. House Communications Democrats ultimately voted unanimously for the measure, bucking some stakeholders' expectations that a handful of them would join Republicans in opposition (see 1903250051).

House Commerce Republicans didn't seek votes Tuesday on five amendments they filed Monday. They included the text of three net neutrality bills the Republicans filed in February -- the Open Internet Act (HR-1006), Promoting Internet Freedom and Innovation Act (HR-1096) and HR-1101. Republicans touted those measures as pathways to a compromise net neutrality bill that wouldn’t rely on Title II as a legal basis (see 1902250051).

The other amendments included the text of two past GOP bills. Rep. Adam Kinzinger, R-Ill., proposed his No Rate Regulation of Broadband Internet Access Act. That bill passed the House in 2016 but faced opposition from President Barack Obama's administration and many Capitol Hill Democrats (see 1604120071).

House Commerce ranking member Greg Walden, R-Ore., filed but then withdrew an amendment with language from his Small Business Broadband Deployment Act. The bill, previously filed in 2017, would exempt ISPs with 250,000 subscribers or fewer from the FCC's 2015 rules. The amendment was opposed by several Democrats, including past bill co-sponsor Rep. Dave Loebsack of Iowa, because of concerns the existing text is outdated. Loebsack and Rep. G.K. Butterfield, D-N.C., said they agreed with the underlying mission of the amendment but believe further work needs to be done before it can be attached to legislation.

House Communications Chairman Mike Doyle, D-Pa., said during the markup he's willing to work with Walden to reach a “middle ground” on the small-business exemption. Doyle told reporters he believes there's “something that can be worked out” with Walden to advance a version of the small-business exemption but didn't indicate whether he would pursue it as part of a manager's amendment. “We're open to hearing from Republicans between now” and the House Commerce markup if they have any amendments to propose so “we can sit down and take a look at them,” Doyle said. “Short of that, I don't anticipate that we'll have any further changes to the bill.”

Next Steps

Walden told reporters he expects Republicans to again pursue amendments at the committee markup, including at least those with text from HR-1006, HR-1096 and HR-1101. He didn't indicate whether Republicans will also refile the No Rate Regulation of Broadband Internet Access Act amendment, noting “we were still arguing over whether the parliamentarians would let us” bring it up. “We're evaluating” other potential amendments, Walden said. He wouldn't say whether any would aim to address his ongoing concerns that resurrection of the 2015 rules wouldn't apply net neutrality rules equally to ISPs and edge providers.

“We've entered a new phase where edge providers are acting as publishers, are determining prioritization, are making these editorial judgments” about online content, Walden told reporters. “It begins to raise questions” that “I think are really valid about what are they?” Walden in recent weeks argued for using the net neutrality debate to also re-examine online platforms’ content liability protections under Communications Decency Act Section 230. He argues edge providers' insistence they need the Section 230 protections makes them sound like common carriers (see 1903080032).

Walden believes Republicans successfully got “better clarification” Tuesday from House Communications Democratic staff “on what [HR-1644] does or doesn't do,” which will help them “figure out where we go from here.” Walden and other Republicans took turns probing Democratic counsel on potential legal inconsistencies in the text. Democrats insisted language would lock in place FCC forbearance from many parts of Title II for broadband regulation.

“By locking in these forbearances … we are locking down the FCC from any future look at things like” potential changes to telecom relay service contribution obligations or USF funding rules, Walden said. “We're tying the hands of the FCC … to keep modernizing their regulations.” Kinzinger wondered whether the FCC would one day change its mind on forbearance just as it had about leaving the 2015 rules in place. Rep. Susan Brooks, R-Ind., raised concerns about whether HR-1644 would prevent the FCC from one day pursuing 5G network nationalization.

Getting to Yes

Republicans' queries eventually drew exasperation from Doyle and other Democrats, including Rep. Anna Eshoo of California. “If we want to continue this, I would suggest that we have a roundtable” discussion “to go through the entire Telecom Act and more," if members wish, Eshoo said. “But this is a markup” and “if we're not going to mark up, then we should shut this down.”

Butterfield and three other House Communications Democrats who hadn't co-sponsored HR-1644 ultimately voted yes, as Butterfield had said was likely (see 1903250070).

The others were Tony Cardenas of California, Tom O'Halleran of Arizona and Kurt Schrader of Oregon. Cardenas said during the markup he remains concerned about the measure's prospects in the Senate. O'Halleran said he hoped House Commerce would move on after clearing HR-1644 to again address rural broadband access issues, which he referred to as “net disparity.”

Rep. Darren Soto, D-Fla., supported advancing HR-1644 but “we should continue” to look at legislative ways to address constituents' concerns about ensuring net neutrality parity between ISPs and edge providers. HR-1644 gives the FCC the authority “to examine interconnection agreements between ISPs and entities looking to interconnect with their networks, including edge providers,” Soto said. The 2015 rules technically apply only to ISPs, but “by giving the FCC the authority to take a look on a case by case basis when disputes arise, the standard will be viewed against the actions of other entities, such as edge providers. So in effect, the actions of all parties will be evaluated.”