Republicans Cite Legal Risks to Lure Democrats on Net Neutrality

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Senator John Thune, a Republican from South Dakota, smiles during a Senate Commerce, Science and Transportation Committee hearing on the nomination of Chicago billionaire Penny Pritzker for Commerce secretary in Washington, D.C., U.S., on Thursday, May 23, 2013.

Photographer: Pete Marovich/Bloomberg

Republican lawmakers are planning a new push on legislation that would overturn net-neutrality rules approved last month by U.S. regulators, this time by using the specter of a court challenge to enlist needed Democratic support.

A previous Republican attempt to head off the rules -- which bar Internet providers such as Comcast Corp. and Verizon Communications Inc. from blocking or slowing Web traffic -- foundered before the Federal Communication Commission adopted them on party lines on Feb. 26.

Now, with the regulations facing an almost-certain lawsuit by the phone and cable industry, Republican leaders in Congress say they want to try again to write a bill that would replace what the agency just passed. That effort, though, depends on luring Democrats, who so far have shown no inclination to undo the FCC’s open-Internet policy.

As part of the effort, Republicans have scheduled five hearings on the FCC over the next two weeks, with a focus on the new rules. On Tuesday, the House Oversight Committee will examine how the FCC decided upon the rules adopted on a Democrat-led party-line vote. House and Senate commerce panels hold hearings on Wednesday and Thursday, and next week House appropriators and the House Judiciary Committee question Wheeler.

Senator John Thune, the South Dakota Republican who is chairman of the Commerce Committee, said in an e-mailed statement that he’s seeking “a better path forward to protect the open Internet through bipartisan legislation.”

Democratic Support

Representative Greg Walden, the Oregon Republican who is chairman of the communications subcommittee, said in an interview that he wants to legislate “in a bipartisan way.”

Anticipated lawsuits against the new rules give Democrats an incentive to sign onto legislation, since a successful bill wouldn’t face litigation, Walden said. The FCC has twice lost before U.S. courts that invalidated earlier attempts at Web-traffic rules.

Walden in January proposed legislation that adopts protections against blocking or slowing traffic, which he said was based on Democratic proposals. The draft measure also removes the FCC’s utility-style legal authority. In an interview, Walden said he hasn’t given up on gaining support from Democrats.

“The odds increase the more people have an opportunity to understand what this 300-page order means,” Walden said. The FCC released the order last week, and it ran to 400 pages including lengthy dissents from Republican commissioners.

Setting Prices

The FCC asserted legal authority rooted in utility-style regulation, a path that critics say opens the door to the government setting prices. FCC Chairman Tom Wheeler, a Democrat, has said the agency has no plans to regulate Internet-access rates.

Democrats, including Representative Anna Eshoo, of California, the ranking member on the communications subcommittee that oversees the FCC, have supported Wheeler’s decision. In a Feb. 25 hearing, Eshoo said Republicans don’t want any regulation “even when doing so would protect the constituents they represent.”

“It’s time to drop the rhetoric and give the FCC the support it needs,” Eshoo said at the hearing.

A law would need to be acceptable to President Barack Obama or have sufficient support to overcome a veto. Obama backs net neutrality -- the notion that Internet traffic gets equal treatment, and rich companies can’t pay for superior speed.

Telecommunications Record

Obama in November called for the “strongest possible rules,” laying out a tougher path than Wheeler had publicly supported. The rules as adopted hewed to the president’s line, and he welcomed them, saying they will protect innovation.

Any legislative solution would have to be bipartisan and couldn’t limit FCC authority, said Chip Pickering, a former Republican member of Congress who is chief executive officer of Comptel. The Washington-based trade group, whose members include Sprint Corp. and Google Inc.’s Google Fiber, supports the FCC’s rules.

Lawmakers’ record passing telecommunications bills “isn’t inspiring, but we see a good starting point,” Paul Gallant, a Washington-based analyst with Guggenheim Securities, said in a Feb. 27 note. “Congressional Democrats want to lock net neutrality into a court-proof statute” and Republicans want to eliminate the strong legal authority that critics say could lead to rate regulation.

“We don’t want anything that undermines what the FCC has done,” said Matt Wood, policy director for Free Press, a group that has advocated strong net neutrality rules, in an interview.

Democrats may wish to back legislation rather than risk having the new regulations thrown out by a court, said Rick Boucher, a former Democratic House member who represents the Internet Innovation Alliance, a Washington-based policy group with members including AT&T Inc. The company has called for Congress to step in.

“No one closed the door on the idea” of working toward a law, Boucher said in an interview.

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