Markey Promises Any Net Neutrality Unraveling Will Spur More Comments Than Earlier Millions

Sen. Ed Markey, D-Mass., led Democrats and public interest groups Tuesday in a net neutrality news conference to resist weakening open internet protections, whether legislatively or at the FCC. He and other Senate Democrats cast aspersions on FCC Chairman Ajit Pai, suggesting he would act on behalf of incumbent ISPs. Markey declined to comment in any detail on possible negotiations beginning between Commerce Committee Chairman John Thune, R-S.D., and ranking member Bill Nelson, D-Fla.

Nelson confirmed the openness on the topic that he and Thune professed to us last week (see 1702030044). “The fight over net neutrality protections has been going on for more than a decade and there’s still no end in sight,” Nelson said in a statement Tuesday. “Because it’s expected the new Republican FCC will undo the agency’s net neutrality rules, I believe only Congress can provide lasting safeguards. I am still open to finding a bipartisan legislative solution, although it’s not going to happen overnight. At the end of the day, any legislation must fully protect consumers and still allow the FCC to respond to changes in the broadband marketplace.”

“I don’t know the status of any negotiations,” said Markey, a Commerce Committee member. “All I know that we all agree that no matter what happens, we should still have a strong net neutrality rule. We’re all supporters of the open internet order and don’t want to see anything that undermines or weakens those rules.” He declined to say whether he would back legislation codifying weaker rules or perhaps rules that relied on authority for broadband other than Communications Act Title II. He cited a need for a “very strong regime” and said the former FCC leadership “correctly decided” on Title II. Discussions “have to reflect the fact that we have a very strong regime in place,” said Markey, disputing that he has heard of any substitute meriting consideration. Nelson, in 2015 negotiations, repeatedly referred to possible use of a Title X, a name meant as a placeholder. In talks now, there are “no specifics attached to it at all, and I do not think it would be a wise thing for any of us to be commenting on,” Markey said.

“Our message is clear: the FCC’s Net Neutrality rule is working, it’s protecting consumers and protecting the freedom of the open internet, and any attempt to roll back this rule and its protections would be foolish and will be met with fierce resistance by Senate Democrats,” said Senate Minority Leader Chuck Schumer, D-N.Y., who was scheduled to appear at the conference but didn’t show up, in a statement. A Schumer spokesman told us logistics prevented him from attending.

Others pressed for legislation. USTelecom President Jonathan Spalter slammed the use of “clunky” Title II. The association’s members want to be “working with Congress on legislative proposals that clarify open internet principles to remove any confusion and ensure that consumers continue to benefit from an open internet, technology entrepreneurs can continue to take chances, and those making significant infrastructure investments are able to do so confidently,” he said. Tech Knowledge President Fred Campbell agreed. “Without new Congressional legislation, the FCC’s net neutrality rules will keep swinging like a pendulum with every presidential election,” said Campbell. “A lasting approach to net neutrality must come from the democratic process in Congress, not executive fiat.” TechFreedom President Berin Szoka also pressed for a compromise. "This decadelong battle has always been first and foremost about the FCC’s increasingly broad claims of legal authority," he said. "Despite what you heard today, that fight isn’t over: yes, a three-judge panel upheld the FCC’s rules, but a scathing dissent laid out a road map for the Supreme Court, if not the full D.C. Circuit, to block Title II. Resolving the FCC’s legal authority in Congress would finally put this polarizing, partisan issue to rest."

Markey said grassroots opposition may help preserve the rules. “Congress is a stimulus-response institution, and there’s nothing more stimulating than millions of Americans communicating to Congress and to the" FCC, he told reporters, saying the 4 million comments the agency received as part of its last open internet rulemaking “is going to seem like prehistoric political time.” Four million “will look like a minuscule” number, he said, predicting a "firestorm."

Other Senate Democrats spoke more generally about wanting to protect the rules but expressed concern about Pai. “The architecture of the internet has always been net neutrality,” said Sen. Al Franken, D-Minn. “I’m concerned about the new FCC head, Ajit Pai. He has repeatedly sided with corporations over consumers. His No. 1 target seems to be taking down net neutrality.” The FCC declined comment.

“I think we all know what the stakes are with the new chairman of the FCC,” said Sen. Ron Wyden, D-Ore., suggesting Pai is “prepared to do the bidding of the big cable companies at the expense of consumers.”

“I hope our fears are unfounded but the indications are we’re in for a fight,” Sen. Richard Blumenthal, D-Conn., said, alluding to what he deemed a threat from Pai. “I am committed to continue this fight as a member of the Senate Commerce Committee. … We need to speak beyond our group. … Our task is one of public education awareness.”

“The big broadband barons and their Republican allies want to turn back the clock” and “they have a new FCC chairman in Ajit Pai who will do their bidding,” said Markey. Zero rating “will become the norm,” he said. “In 2015, broadband providers invested $76 billion in infrastructure upgrades -- the second highest in the last 10 years,” added Markey. “There is no problem that needs to be fixed.”

Sen. Patrick Leahy, D-Vt., also noted the millions of comments to the FCC before and urged a return to that spirit. He argued against undermining open internet protections and the possibility of a case wherein: “It’s free and open -- if you’ve got the money." He said that's not America.

“We will all work hard, both with the FCC and with the Congress,” said Public Knowledge President Gene Kimmelman, speaking alongside many other groups including Free Press and the New America Open Technology Institute. The groups “have brought you all the analysis in these points the senators have presented to you,” Kimmelman said.