Uncertainty over whether the U.S. Court of Appeals for the District of Columbia Circuit will overturn the FCC’s Open Internet rules appears to be a major roadblock to any bipartisan resolution of the issue in Congress. James Assey, the Executive Vice President of the National Cable & Telecommunications Association (NCTA) stated that the “overhang” of the court’s ruling has made it difficult to promote legislation related to the issue. Grace Koh, Republican counsel to the House Commerce Committee, commented recently on the issue at a session of the Practising Law Institute’s Broadband and Cable Industry Law 2016 seminar. She stated that Republicans on the Committee “would redouble [their] efforts at legislation” before the election should the D.C. Circuit strike down the rules. Ms. Koh further noted that Republican efforts to work with their Democratic colleagues on Open Internet legislation had been unsuccessful.
The Rate Regulation of Broadband Internet Access Act (HR-2666) is emblematic of the partisan gridlock surrounding Open Internet rules. Sponsored by Republicans, HR-2666 cleared committee and subcommittee despite intense Democratic opposition. Bipartisan negotiations appear to have broken down, and no bipartisan amendments were filed. Rather, Rep. Mark Sanford (R-SC), filed an amendment to HR-2666 declaring that the FCC “does not have 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 adopted by the Commission on February 25, 2015.” The Sanford amendment would also declare that the FCC lacks authority under Section 706 of the Communications Act to issue Open Internet rules.
The White House responded swiftly to HR-2666, which is scheduled for a floor vote on Friday, April 15, issuing a Statement of Administration Policy on April 12 stating that the bill “would undermine key provisions in the [FCC’s] Open Internet order and harm the Commission’s ability to protect consumers while facilitating innovation and economic growth.”
While HR-2666 is widely expected to pass the Republican-controlled House of Representatives, the Statement of Administration Policy effectively announces that President Obama would veto the legislation if it made it to his desk.
Public Knowledge also sent a letter to the leaders of the House and Senate on behalf of fifty other public interest groups urging Congress to reject the legislation.
Ms. Koh believes Democrats might be willing to compromise if the D.C. Circuit overturns the Commission’s Open Internet rules, but until the court decides the appeal, the prospect of any proposed legislation becoming law seems unlikely.