Open Internet Implications Linger for Possible 2017 Telecom Rewrite Revival

Lawmakers told us a potential revival next year of a 1996 Telecom Act rewrite effort may be better positioned than the effort derailed during this Congress. Capitol Hill Republicans blamed the FCC net neutrality rulemaking for the initiative’s stalling, and it's unknown whether a future rewrite effort can avoid the partisan conflicts that characterized net neutrality debates. One delicate factor in the latest open internet battles involved which Communications Act statutes the FCC should use to address broadband service, laws that could be subject to change in any overhaul of the broader law.

Senate Commerce Committee Chairman John Thune, R-S.D., is open to a telecom rewrite addressing the so-called “Title X,” an issue he and ranking member Bill Nelson, D-Fla., negotiated over for more than a year this Congress, trying to cobble together a bipartisan net neutrality legislative compromise, which was never released. Thune, who always backed a telecom overhaul in line with a House GOP effort, in the past month told reporters that he wants to revive such an attempt despite what he sees as a high level of difficulty.

“It’d be great if Title X could be a part of that,” Thune said in an interview. “It’s going to be largely probably up to the Democrats and whether they want to incorporate a Title X into any kind of telecom rewrite. But I would hope they would. I still think that certainty’s the best thing, and it’s time for Congress to be heard on this subject. But that’s a discussion I suppose that’ll have to happen as we get into next year.”

The Title X phrase is used as a placeholder for a new section of the Communications Act that would provide a legal basis for net neutrality rules other than the act's Title II classification for broadband. Hill Republicans and ISP industry stakeholders strongly object to use of Title II, and Thune warned of the broadness of Telecom Act Section 706. Control of the Senate after the November elections is seen as especially uncertain, and it’s possible either Thune or Nelson could lead Commerce next year depending on the outcome. A Nelson spokesman declined comment on Nelson’s potential interest in a telecom rewrite and whether Title X should be a part of it, saying it’s premature to discuss next year’s priorities ahead of the elections. Nelson mentioned Title X in late 2014 and framed it as his concept when speaking to Incompas last year (see 1504130053).

The 2017 session will “be fertile” for another attempt at Communications Act overhaul due to the June U.S. Court of Appeals for the D.C. Circuit ruling upholding the FCC net neutrality order, House Communications Subcommittee Chairman Greg Walden, R-Ore., told us. “We kind of have resolution to a large measure on net neutrality, not that we’re happy on it and it’ll be appealed.” Walden is widely seen as vying for a Republican leadership spot atop the Commerce Committee. Both he and House Commerce Committee Chairman Fred Upton, R-Mich., face term limits for their respective subcommittee and full committee chairmanships this year, and all Republicans believed to be interested in taking over the full committee position told us they want a telecom rewrite next year (see 1607220053). “I think we’ll be in a better position,” argued Walden, saying net neutrality “was always the big elephant sitting in the room you couldn’t get around. Anything you tried to do, the other side would say, ‘Oh, you’re just mad about net neutrality.'"

Walden and Upton kicked off the latest House effort in December 2013. They actively solicited feedback, held a hearing and arranged private bipartisan briefings with stakeholders throughout 2014. The effort collapsed in 2015 amid debate on the FCC net neutrality proceeding. Industry stakeholders have petitioned for a D.C. Circuit rehearing (see 1607290052) and some anticipate eventual Supreme Court consideration. Partisan net neutrality fights also derailed the last big telecom rewrite attempt in 2005 and 2006, which unlike this Congress yielded specific legislation to overhaul the act (see 1402110041).

“All our fights now with the FCC seem to be in interpretation of past law and how does it apply to a new communications environment,” said Rep. John Shimkus, R-Ill., who’s pressing to lead Republicans on the Commerce Committee next year and advocating for a telecom rewrite. “So for clarity, for efficiency’s sake, why not wipe the slate clean and ask the FCC and ask the tech community and ask the content people and ask all the stakeholders, if we were to rearrange and re-identify the key roles that an FCC should do, what should they be?”

House Commerce Committee Vice Chairwoman Marsha Blackburn, R-Tenn., seen as another possible if not leading contender for Commerce Committee’s top Republican position next year, sees a telecom rewrite as a vehicle to “clear up the net neutrality situation” and provide “clarity,” she told us. Democrats on the Hill likely will resist legislation on net neutrality at least for the near future, they told us after the court ruling (see 1606140053). They saw that decision as a victory and any future court review as far off. Henry Waxman, a former Democratic House Commerce Committee chairman who now lobbies Congress, recently told us that any overhaul would have to avoid open internet implications to come together on a bipartisan basis.

The court’s net neutrality ruling effectively lowers the appeal of a more comprehensive telecom rewrite for Democrats, Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii, acknowledged in an interview: “Yes, or less urgent.” Schatz backed the idea of Thune/Nelson bipartisan net neutrality legislation last year while the litigation was pending and the fate of the order was less certain.

“Tough issues should not be a barrier to having a conversation about updating the Telecom Act,” said Rep. Ben Ray Lujan, D-N.M., considering net neutrality’s effect on the unsuccessful telecom overhaul effort from this past Congress. “As a matter of fact, they require a conversation about the Telecom Act. So I’m not certain what barriers are being used as an excuse, but I think all the barriers that are used as rationale for not doing this are the exact reasons why we should update the Telecom Act.”