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Net Neutrality Bill Clears Second Hurdle After Marathon Markup

After over nine hours of debate, mostly failed amendments, and delays, legislation that would re-regulate internet access by reinstating the FCC's 2015 Open Internet Order's Title II-based net neutrality rules is on its way to a vote in the full House next week, where it is likely to pass.

Those rules were rolled back by the FCC under current chairman Ajit Pai.

An amended version of the Save the Internet Act (HR 1644) was approved by the House Energy & Commerce Committee Wednesday (April 3) on a party-line vote. The vote approving the amended version was 30 to 22, and on favorably referring the underlying bill, as amended, to the House, was also 30 to 22.

That came after a contentious, marathon markup--with a break of close to two hours for a speech by the head of NATO to a joint session of Congress and another two hour-plus recess for floor votes and Budget Committee votes (several members are on both committees).

While the Save the Internet Act will likely pass the House, it is unlikely to make it through the Republican-controlled Senate, though net neutrality groups are trying to pressure some of those Republican senators to get on board, as a few did last Congress when a Congressional Review Act resolution to nullify the Restoring Internet Freedom order passed the Senate, but not the House.

Wednesday's all-day markup was extended by a series of protracted roll call votes on a host of amendments floated by Republicans and shot down by the Democratic majority. Net neutrality activists had warned that Republicans would try to pepper the bill with amendments and that prediction proved out.

Democrats were offering up a bill that Republicans advised, and some Democrats conceded, would almost certainly not pass the Senate, while Republicans were offering up amendments they knew Democrats would not approve.

The bill did include a single, Democratic, amendment providing for an exemption from enhanced transparency reporting requirements for smaller ISPs, but defined as 100,000 subs and only for one year, which is less than Republicans and those smaller ISPs had wanted.

The Act was favorably reported out of the Communications Subcommittee last week on a similar party line vote in a similarly contentious, though considerably shorter, markup.

At Wednesday's markup, House E&C Chairman Frank Pallone (D-N.J.) said the act "will protect consumers and small businesses from abusive and discriminatory practices, while also protecting free speech." He said the FCC had abandoned strong net neutrality protections. Rep. Mike Doyle (D-Pa.), chairman of the Communications Subcommittee, said that it would simply put a cop back on the beat to protect against unjust and unreasonable practices that fall outside the bright lines of the rules.

Republicans complained the House vote on the bill was being rushed--it had been scheduled even before the markup.

Related: Groups Push for 'Clean' Net Neutrality bill

Ranking member Greg Walden (R-Ore.) called the bill a "government takeover of the internet." He said there was still bipartisan consensus on non-Title II-based rules to prevent blocking, throttling, and paid prioritization, a bill which he has proposed and which he has said before could pass ASAP. "But instead the majority seems to be dead set on using the net neutrality debate to give the federal government near unlimited and unchecked authority to regulate the internet," he said.

Rep. Anna Eshoo (D-Calif.) said the internet has flourished because of the federal government, then provided a tour of the government's funding of the development of packet switching, which makes the internet possible, and Arpanet, the internet's predecessor.

She said companies played essential roles, but said they should celebrate government's foundational role. She said it is the government's role to make sure companies don't abuse their power.

As it stands, Republicans won't support reimposing Title II, and Dems don't want a bill without it. Republicans, even without Title II, don't want the general conduct standard (see below) in the bill because they see it as a route to after-the-fact rate or other regulation using the FCC's broad authority under Secs. 201 and 202 to prevent "unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services," while Dems see that as necessary to give the FCC flexibility to address as-yet unanticipated efforts to impede an open internet or ones that don't fall neatly under the rules being reimposed.

If they can't find common ground on those, bipartisan net neutrality legislation will remain on the distant horizon.

At least two Democrats--Rep. G.K. Butterfield (N.C.) and Rep. Scott Peters (Calif.)--conceded at that the bill as constituted was unlikely to pass the Senate and that both sides needed to get together on a compromise bill that would.

The Save the Internet Act (HR 1644) would restore Title II classification of internet access and rules against blocking, throttling and paid prioritization, as well as the general conduct standard.

The committee actually approved an amended version of the bill, offered by Rep. Doyle.

The amendment, in the nature of a substitute, which means it replace[ment] of the old bill, was meant to clarify that the 2015 Open Internet Order's narrow application of Title II--by forbearing to apply most of the Title's regulations--was set in stone and could not be "unforborne," as it were, by a future commission, or what Walden called leaving "the back door open." That was a big issue with Republicans at the subcommittee markup, and remained so, the amendment notwithstanding.

Walden, who opposed the amendment along with the rest of the Republicans, was unconvinced that it prevented a future FCC from applying more common carrier regs (Title II), or effectively applying them via other means. He said he would have preferred that the Congressional Research Service vet the amended version of the bill, since CRS had looked at the former version and concluded it would give the FCC authority to undo some of that forbearance, something Dems had claimed it would not.

Rep. Bob Latta (R-Ohio), ranking member of the Communications Subcommittee, also cited the CRF report on the original bill, which said the FCC could revise its forbearance and did not foreclose it from such action under the Communications Act.

Walden said he was still not sure what Doyle's substitute bill did. It alleges that it locks in forbearance, but he said he was not sure it got them "all the way there."

Rep. Doyle said that the Dems believed the language in the subcommittee version was solid and its intent clear, but the amended bill went one step further to make "crystal clear" of what the intent of the forbearance was. He said he thought it would survive the legal challenge.

But Doyle also made clear that the new version of the bill included the Open Internet Order's general conduct standard, which allows the FCC to take action against whatever conduct it concludes unbecoming an open internet. Republicans are worried that regardless of the forbearance from rate regulation or unbundling or other authorities, the FCC could wind up effectively setting rate regs or unbundling under the general conduct authority's broad mandate.

Related: Net Neutrality Remain Fighting Words on Hill

Republicans kept asking during the hearing for a list of the 700 Title II regs not being applied, if those forbearances were being "locked in" to statute. but Democrats said they saw that request as a delaying tactic. Walden said it was just due diligence to identify what the FCC would forever be looked into, including no reform of the Universal Service Fund to require ISPs to pay into, which is a decision the FCC said in the Open Internet Order it was forbearing, for now, not forever.

The committee, along party lines, voted down an amendment (30 to 23) to the amended bill, offered by Walden, which he said would permanently close the loopholes the majority's "fauxbearance" bill still contained. Doyle said the Walden amendment could tie the hands of the FCC from addressing future discriminatory practices. He said the Walden amendment's language was vague, confusing and overbroad and would prevent the FCC from adopting rules on zero rating or interconnections or otherwise exercise important consumer protection powers.

Walden also brought up the issue of edge providers not being included in the bill or the talk about preserving an open internet.

Rep. John Shimkus (R-Ill) suggested that the Save the Internet Act was an exercise in futility because the House needed to pass a bill that the Senate would pass and the President would sign. Shimkus also said the edge needs to be part of the conversation about net neutrality.

The committee did adopt a Doyle amendment (the vote was 29-22) to his own amended bill that would provide a narrow exemption from the enhanced tranparency rule for small ISPs. By small, he said that meant those serving fewer than 100,000 customers, but the exemption would only be for one year.

He said the Democrats had worked with the Republicans, but were unable to come to agreement on the scope of the exemption.

Walden had brought up the exemption issue at the subcommittee markup, but he wanted a 250,000-sub cut-off (actually a compromise from 500,000) and a five-year exemption, so he was not happy with Doyle's version. He opposed the exemption in that form, but later introduced his version, which was not adopted since Doyle's version had already been approved. The vote against the Walden version, which he said would help prevent the dead hand of government from choking off investment, was 29 to 22.

Related: D.C. Stakeholders Square Off Over Net Neutrality Bill

Also defeated was an amendment (the vote was 28 to 20) offered by Rep. Adam Kinzinger (R-Ill.) that "unambiguously, explicitly and permanently" prevented broadband service rate regulation "once and for all," both proscriptive rate regs and after-the-fact rate regulation authority under Sec. 201 and 202.

Doyle reiterated that the bill locked in rate-setting forbearance, period, as well as no tariffing and no unbundling, but that the Republicans wanted to prevent the FCC from preventing ISP overcharging, which isn't rate-setting but addressing consumer complaints. He called the amendment anti-consumer.

Rep. Kinzinger said he thought the amendment clearly defined what a rate was, and said it was not anti-consumer, since rate regulation would harm investment in broadband, particularly rural broadband. He said short of killing the bill, his amendment was the most consumer friendly thing the committee could do.

Defeated (30 to 23) was an amendment from Rep. Cathy McMorris Rogers (R-Wash.) that would prohibit the FCC from regulating lawful content on the Internet. She said under the general conduct standard, the FCC could police internet content and endanger the First Amendment. She said the FCC should not be allowed to silence government critics. Walden pointed out that the FCC did not forbear from sec. 223, which he said allows the FCC to become the "speech police."

Doyle said that the President may want the FCC to crack down on content he doesn't like, but his bill does not allow for that.

Also in the defeat column (30 to 21) was an amendment from Rep. Bill Flores (R-Tex.) that would make it clear that no new fees or taxes, federal, state or local, could be levied on internet access using Secs. 201 and 202. Flores said it was just backstopping the bill to make sure its intent of preventing such fees and taxes was essentially ironclad.

Doyle responded that the Internet Tax Freedom Act (ITFA) already prevents such fees, and that his bill did nothing to compromise that. He also took a shot at the amendment, saying it was "poorly drafted."

Rep. Greg Gianforte (R-Mont.) had the next amendment to fall, though it was the first that fell via voice vote rather than having to have a roll call vote. It would have insured the FCC's "unelected bureaucrats" could not impose what amounted to a "network management fee" by forcing ISPs to upgrade their networks.

Doyle said it was not clear what a network management fee was and said that amendment, too, was poorly drafted. Flores took issue with that characterization, saying Gianforte's amendment was crystal clear. Gianforte said it was also clear that a vote against the amendment was a vote for widening the digital divide.

Even 5G made an appearance in the amendment parade. An amendment offered by Rep. Bob Latta (R-Ohio) would insure the FCC could not use its Title II powers over the 'net to create a nationalized 5G network. Doyle said he was not aware of anything in the bill that would allow the FCC to seize any contracts or infrastructure. That amendment, too, was defeated. The vote--a roll call was called for once again--was 30 to 22, with all the Democrats voting against.

The ultimately defeated amendment from Rep. Brett Guthrie (R-Tex.) would have exempted 5G wireless service from the act and its reimposition of the regulations. He said it was critical that the service had network management flexibility, not the "dumb pipe" regulation of Title II. He said there should be no chance to limit 5G by an outdated view of how networks should work, or by imposing rate regs. Doyle said it was more important to have the FCC as a cop on the 5G beat, not less. He called it harmful to the future of the internet. The vote defeating the amendment was 30 to 22.

Rep. Bill Johnson (R-Ohio) introduced an amendment that would have exempted ISPs providing rural service--i.e. those bridging the digital divide--from the rule reimposition. Doyle called it a huge weakening of the rules to say that if you built out high-speed broadband to unserved areas (which the amendment defines as 25 Mbps downstream/3 Mbps up), you got to block, throttle and prioritize.

That amendment went down to defeat by a vote of 30 to 22.

Next up was an amendment by Rep. Gus Bilirakis (R-Fla.) that would have exempted telehealth broadband services from the bill. Doyle called the amendment broad and confusing, saying any ISP who gets telehealth funding to provide service to a single hospital would be exempt from the bill. The recorded vote defeating that amendment was the familiar 30 to 22.

Next! That would be Rep. Tim Walberg (R-Mich.), whose amendment would protect consumer-friendly sponsored data (zero rating) plans from targeting under the general conduct standard. Doyle said the amendment would create a "huge hole" in the neutrality protections at the core of the bill. Doyle said zero rating could still be reviewed on a case-by case basis under his bill.

The vote defeating the Walberg amendment was 30 to 24.

Rep. Billy Long (R-Mo.), whose name by that point in the hearing (8.5 hours) was appropriate, talked about the cable industry's 10G initiative and said his amendment would exempt multigigabit services from Title II. Long said he assumed it would be adopted unanimously by voice vote, so he would not call for a roll call vote--obviously said with tongue in cheek. It, indeed, went down on a voice vote.

Rep. Walden made a return engagement with an amendment that said no later than a year after the bill was passed, the FCC would be directed to look at the impact of all entities on the virtuous cycle of the internet, notably the Facebooks and Twitters of the world, but including app stores and others, and then report back to Congress.

Doyle said the amendment was not germane because it dealt with the entire internet ecosystem, while the bill deals only with ISPs. Walden did not disagree and withdrew the amendment.

As the markup wound down, Doyle said: "We just have a fundamental disagreement," effectively summing up the proceedings. He said just passing rules against blocking, throttling and paid prioritization, as Walden said both sides could agree on, won't get at future ISP behavior.

“I’m proud that the Energy and Commerce Committee approved the Save the Internet Act and thank Communications and Technology Chairman Mike Doyle for all his hard work on net neutrality," said Pallone following the vote. "Our bill protects consumers and small businesses from abusive and discriminatory practices by internet service providers and protects free speech and innovation. It’s time for the full House to vote to keep the internet open and free, and I will work to make that happen soon.”

"Democrats have changed their position, and decided to discard nearly 25 years of bipartisan consensus in favor of giving the federal government near unlimited and unchecked authority to regulate the internet," said Walden, Latta and Rogers in a joint statement. "Not to mention, their bill would pave the way for taxing the internet and killing innovation."