Net Neutrality Case Could Spur Communications Law Rewrite

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By Kyle Daly

June 14 — Congress doesn't have time this year for a stand-alone legislative response to a sweeping federal appeals court ruling on net neutrality, Republican lawmakers said June 14.

The U.S. Court of Appeals for the District of Columbia Circuit handed the FCC a major victory June 14, ruling that the agency didn't violate any statutory authority or procedural rules in reclassifying broadband providers as common carriers under federal communications law ( U.S. Telecom Assoc. v. FCC, D.C. Cir., No. 15-1063, decision rendered 6/14/16 ).

But the decision is likely to spur a longer and broader effort to rewrite federal communications law, which hasn't been substantially revised since 1996. Such an effort, which might not start until after final resolution of the net neutrality case, could take years for lawmakers to finish. Leading Republicans said there isn't enough time in this year's session to push through a narrower bill to roll back the appeals court decision.

“We're at the end of the legislative year,” House Energy and Commerce Chairman Fred Upton (R-Mich.) said. “To start a new [bill] without a lot of legislative days left is pretty futile.”

For now, Upton said that lawmakers' options on net neutrality may be “pretty limited legislatively” as long as there's a Democrat in the White House.

Rep. Greg Walden (R-Ore.) chairman of the panel's Communications and Technology Subcommittee, echoed Upton, telling reporters he intends to “look at options and other ways forward,” but that there's no time in this Congress to get a bill going.

Walden said without at least 60 Republicans in the Senate, any legislation countermanding the FCC's Open Internet Order mandating net neutrality likely would have trouble advancing.

House lawmakers are attempting, however symbolically, to chip away at the FCC's net neutrality rules. House Speaker Paul Ryan (R-Wis.) revealed the economic plank of his “Better Way” roadmap for regulatory agencies June 14, including a plan to undo the FCC's Open Internet Order.

House appropriators have inserted a provision in their fiscal 2017 appropriations bill that would fund the agency barring the FCC from enforcing the order until all legal challenges are fully settled. But, similar provisions have been included in spending bills in recent years, only to be stripped out before final legislation was enacted (2016 TLN ???, 7/1/16). This year is not expected to be any different, especially now that the D.C. Circuit has issued a ruling hailed by Democrats.

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Communications Act Update

With prospects for a standalone net neutrality bill looking grim, some lawmakers are already looking to revive a broader effort to update the Communications Act of 1934, which hasn't been substantially revised since the passage of the Telecommunications Act of 1996.

Efforts in recent years to draft a major update to the Communications Act fell by the wayside amid the battle over net neutrality (2015 TLN 20, 1/1/15).

“This is why we need to rewrite the Communications Act,” Rep. John Shimkus (R-Ill.), a senior GOP member of the House Energy and Commerce Committee, said in a statement. “There's a better way to protect consumers from blocking and throttling without stifling innovation or delaying build-out. That way requires action by Congress.”

Upton and Walden both declined to say whether they hope to use the net neutrality development as the catalyst for a Communications Act rewrite. Nevertheless, Walden suggested it may be on the table once the net neutrality legal case is fully settled.

“I don't think it's a secret we were headed down the complete rewrite path until net neutrality became the big donkey in the room, I'll call it, rather than elephant,” Walden said. “That derailed us a bit.”

Paul Werner, a partner at Sheppard Mullin in Washington, D.C., told Bloomberg BNA that he anticipates that while “nothing's going to happen until after the election,” the next Congress is likely to have a renewed interest in updating the Communications Act.

“I think that this just points out that it's been a long time since there's been a Communications Act that reflects the current state of the industry and the market,” he said.

Doug Brake, a telecom policy analyst at the Information Technology and Innovation Foundation, said he believes the telecom industry will now turn its efforts toward pushing for the Communications Act rewrite.

Harold Feld, senior vice president of Public Knowledge and a vocal proponent of the FCC's rules, told Bloomberg BNA that he sees a Communications Act rewrite as the likely outcome of the net neutrality ruling.

“Now that, I think, is possible,” he said.

Leaving Net Neutrality Behind

Despite the ostensible connection between the two, Republican lawmakers may have trouble trying to rewrite net neutrality rules as part of a broader Communications Act rewrite. Rep. Jerry McNerney (D-Calif.) told Bloomberg BNA he'd be open to working with his Republican counterparts on further refining the FCC's statutory authority should they revive the Communications Act update — but not if they try to fiddle with net neutrality while they're at it.

“Can we work together? Maybe,” he said. “I'm someone who likes to work across the aisle. But I don't know about overwriting Title II [reclassification]. That's going to be a really sticky one.”

With assistance from Lydia Beyoud.

To contact the reporter on this story: Kyle Daly in Washington at kdaly@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com