Rate Regulation House Vote May Include Consideration of Title II, Net Neutrality

One House Republican used this week's planned telecom floor vote to set up possible chamber consideration of the FCC’s February 2015 net neutrality order decision to reclassify broadband as a Communications Act Title II telecom service. Rep. Mark Sanford, R-S.C., filed an amendment to the Republicans’ No Rate Regulation of Broadband Internet Access Act (HR-2666) Monday on reclassification and the net neutrality order's authority.

Little effort seemed to be underway to change the underlying partisan GOP measure Monday ahead of its Friday vote on the House floor, with no bipartisan amendments filed. HR-2666 cleared committee and subcommittee with intense Democratic opposition and an apparent breakdown in bipartisan negotiation (see 1603150044). A GOP staffer for bill author Rep. Adam Kinzinger, R-Ill., told us Friday no Republican amendments were expected, but possibly some Democratic ones. Amendments were due to the Rules Committee by 3 p.m. Monday, which scheduled a 5 p.m. Tuesday session on how the chamber will proceed with its Friday floor vote. Rules Committee Chairman Pete Sessions, R-Texas, is the measure’s latest co-sponsor, signing on March 21. It was unclear Monday whether any amendments will be permitted or in what fashion, if so.

The Sanford amendment would say it's the sense of Congress that the FCC “does not have the authority to classify broadband Internet access service as a telecommunications service … and should reclassify broadband Internet access service as an information service … as before the adoption of the Report and Order on Remand, Declaratory Ruling, and Order that was adopted by the Commission on February 26, 2015.” It would also say the commission lacks authority under Telecom Act Section 706 to promulgate such net neutrality rules. The amendment would likely prove partisan because Democrats widely support the FCC’s net neutrality rules, though a small number oppose the use of Title II reclassification.

House Democrats filed four amendments. Rep. Jerry McNerney, D-Calif., submitted an amendment that, much like one he filed at the full Commerce Committee markup, would add a line saying nothing in the bill would affect the FCC’s authority to act in the public interest. Rep. Mike Doyle, D-Pa., filed an amendment he said would retain commission authority to “accelerate the deployment of broadband internet access service to low-income consumers.”

Other Democrats filed amendments addressing priorities from previously introduced and separate pieces of legislation. Rep. Ben Ray Lujan, D-N.M., filed an amendment to clarify that nothing in the bill “would prevent the FCC from requiring that TV broadcast stations, AM or FM radio broadcast stations, cable operators, direct broadcast satellite service providers, or satellite digital audio radio service providers to upload the public inspection file in a format that is machine-readable, to the extent such station, operator, or provider is required to make material in its public inspection file available on, or upload such material to, an Internet website,” its summary said. A group of 10 Democrats back the amendment filed by Rep. John Yarmuth, D-Ky., saying nothing in the bill would affect the FCC’s powers to “revise or modify its sponsorship identification rules,” including “the names of significant donors for political matter or matter involving the discussion of a controversial issue of public importance.” Yarmuth introduced the Keep Our Campaigns Honest legislation last year, with significant Democratic backing, that focused on those issues. His amendment co-sponsors include Commerce Committee ranking member Frank Pallone, D-N.J., and Communications Subcommittee ranking member Anna Eshoo, D-Calif.

Public Knowledge Senior Vice President Harold Feld had sought a “one-line fix" to HR-2666, which wasn't filed as an amendment. “The bill’s sponsors still have time to correct things and move the bill back from being an invitation for broadband providers to favor their own streaming services through zero-rating and to gouge consumers even worse than they do already,” Feld said in a blog post for Medium. “All the bill’s sponsors need to do is accept an amendment changing the definition of rate setting. Instead of deliberating using a brand new and expansive definition of rate setting, H.R. 2666 should simply define ‘rate regulation’ the way the Supreme Court did in January. Strike the existing definition and define ‘rate regulation’ as ‘using a rulemaking process to set a specific price.’ That is what ‘rate regulation’ has always meant, and is the thing President [Barack] Obama and FCC Chairman Tom Wheeler pledged never to do.”

Kate Forscey, government affairs associate counsel for Public Knowledge, slammed the amended version of HR-2666 as cleared in the partisan Commerce Committee markup, which Republicans said was an attempt at compromise. They included some consumer protections in the text to try to reassure Democrats the rate regulation wouldn't harm those authorities. Democrats still criticized the amendment as insufficient and voted against it. “On its face, the bill has been cleverly rewritten to work in a couple of specific carve-outs, such as exempting enforcement of the ‘no paid prioritization’ rule or protecting interconnection between network providers,” Forscey said in a different blog post. “Taken individually, these added provisions look at first glance like an attempt at compromise. But it actually exposes what we fear is the bill’s true intent: The outright authorization of broadband internet access service providers’ ability to charge monopoly rates -- and taking the cop who exists to protect consumers from this off the beat.”

House Republicans defend the measure as strictly focused on prohibiting FCC broadband rate regulation. Commerce Committee staffers released a fact sheet on how they see the provisions. HR-2666 “protects Americans from the Federal government finagling with price structures and leaving many without a connection to the 21st century,” Majority Leader Kevin McCarthy, R-Calif., said, associating the bill with what he’s called the Innovation Initiative. McCarthy invoked that phrase last month during a House vote on another of the Commerce telecom bills (see 1603160050) and in a Medium blog post on his legislative goals behind the initiative.

Wheeler, who prefers codifying the net neutrality order forbearance as opposed to such a text as HR-2666, said last week that rates are a part of many FCC actions and the ban could affect more than what GOP lawmakers say it could. “This is reality -- at the heart of all the actions that Mr. Wheeler identifies, and others, ‘is rates,’” Free State Foundation President Randolph May said in a blog post last week. “And, of course, so are any actions that curtail or alter the various zero-rating plans now under Commission examination, if not formal investigation, or that impact usage tier charges. I'm pleased, in a way, that, in trying to fend off ‘no rate regulation’ legislation, Mr. Wheeler at least is now acknowledging that much of what the Commission majority did in adopting the Title II regulation order either presently amounts to rate regulation or likely will lead to rate regulation.”