Congress Will Have to Settle Net Neutrality Fight

Keep up with the latest developments and legal issues in the telecommunications and emerging technology sectors, with exclusive access to a comprehensive collection of telecommunications law news,...

By Kyle Daly

The Federal Communications Commission’s move to scale back net neutrality rules may pressure Congress to step in and settle the matter sooner rather than later.

The commission’s current rules prevent broadband providers such as AT&T Inc. and Comcast Corp. from blocking or slowing traffic flowing across their networks in most circumstances. The GOP-controlled agency has taken the lead for now in dismantling rules enshrined by Democrats in 2015. But that pendulum swing demonstrates that only Congress may be able to provide enough regulatory predictability for internet service providers on the one hand and tech companies, such as Netflix Inc. and Inc., on the other.

“The only way to truly provide legal and political certainty for open internet protections is for Congress to pass bipartisan legislation,” Senate Commerce, Science and Transportation Committee Chairman John Thune (R-S.D.) said in a May 18 Senate floor speech.

The FCC voted 2-1 along party lines May 18 to approve a proposal that would reverse its underlying regulatory classification of broadband as a common-carrier service and put a range of other issues up for debate. GOP lawmakers have been waiting for the FCC to rewrite its net neutrality rules before trying to move legislation. But Thune has signaled recently that he might not wait until the commission completes its months-long process of issuing final new rules.

Once it’s clear the FCC is “going in a direction that’s going to unwind a lot of the stuff” that the Democrat-controlled FCC did during the Obama administration, “I think it gives us some momentum to move legislatively,” Thune told Bloomberg BNA recently. “I think it’s time for Congress to be heard from on this and put some clear rules of the road in place.”

FCC Chairman Ajit Pai and fellow Republican Commissioner Michael O’Rielly have in the past called for a legislative solution to net neutrality. After the FCC vote, Pai told reporters only that he would defer to lawmakers on whether they want to try to craft a net neutrality bill. O’Rielly, however, reiterated his view that legislation is needed.

“I think the only lasting peace on net neutrality can be driven through statutory provisions by Congress,” O’Rielly said. “That’s the only way to address the issue long-term. I think it provides the certainty that everyone has been seeking.”

It may be hard for Thune to win over the necessary Democratic support to write a bill that can get a filibuster-proof 60-vote majority of support in the Senate. Sen. Bill Nelson (D-Fla.), the Senate Commerce Committee’s ranking member, and Rep. Frank Pallone (D-N.J.), the ranking member of the House Energy and Commerce Committee have said recently that they don’t believe the time is right to legislate. Pallone doesn’t trust Republicans to negotiate net neutrality legislation in good faith, he told reporters earlier this month. He continues to believes that, Pallone spokesman Matt Schumacher told Bloomberg BNA May 18.

To contact the reporter on this story: Kyle Daly in Washington at

To contact the editor responsible for this story: Keith Perine at

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Tech & Telecom on Bloomberg Law