Since the Federal Communications Commission (“FCC”) repealed the 2015 net neutrality rules last year, federal and state lawmakers have debated how to address the issue of net neutrality going forward.  We previously have discussed some of the state net neutrality laws that were enacted, including California’s law, which currently is on hold pending the resolution of Mozilla Corp v. FCC, the lawsuit challenging the FCC’s order that repealed net neutrality rules.  Oral argument for this case was held in the U.S. Court of Appeals for the D.C. Circuit on February 1, 2019.Recent activity in both chambers of Congress suggests that at least some members view federal legislation as the solution to the issue of net neutrality.  Last month, the House Communications and Technology Subcommittee held a hearing on net neutrality, during which witnesses discussed the FCC’s repeal of the 2015 net neutrality rules and their positions on the use of Title II of the Communications Act as a legal basis for FCC regulation of broadband internet service providers (“ISPs”).  House Republicans already have introduced three net neutrality bills, and House and Senate Democrats announced a new bill earlier this week on Wednesday, March 6th.  These more recent developments are discussed in greater detail below.House Hearing and Title II Debate

The current debate surrounding net neutrality, as demonstrated by the dialogue at the February 7 hearing, continues to focus most on whether broadband ISPs should be classified as a Title II telecommunications service providers or instead as a more lightly regulated Title I information service providers.  Republican lawmakers argued at the hearing that Title II is outdated and should not be used as statutory authority to regulate the internet, whereas Democrats defended the 2015 Open Internet Order rules and Title II as their legal basis.

All six witnesses at the hearing expressed their views on the Title II debate.  Former FCC Chairman Tom Wheeler, for example, who favors Title II as a basis for regulation, explained, “Just because an ISP carries content . . . does not mean it should be regulated as though it is a content company.”  Also favoring Title II-backed rules were Mozilla COO Denelle Dixon, Free Press Senior Counsel Jessica Gonzalez, and actress Ruth Livier.

Former FCC Chairman Michael Powell, along with Joseph Franell, CEO of Eastern Oregon Telecom, opposed Title II as a legal basis for FCC rules.  Powell spoke about the need for Congress to take action, noting that “Title II is entirely distinct from net neutrality and is an unnecessary precondition for Congress to establish strong net neutrality requirements coupled with strong enforcement.”

Proposed Legislation in the House

House Energy & Commerce Committee Republicans proposed three separate net neutrality bills in February of this year; those bills exhibit many of the views expressed by Republican lawmakers during the hearing.  Ranking Member Greg Walden (R-OR) introduced H.R. 1101, which would prohibit blocking, throttling, and paid prioritization, and also would prohibit the FCC from relying on Section 706 of the Telecommunications Act of 1996 as a legal basis for net neutrality regulation.  Communications & Technology Subcommittee Ranking Member Bob Latta’s (R-OH) Open Internet Act of 2019 is based on a 2010 draft bill introduced by former Energy and Commerce Chairman Henry Waxman (D-CA), and classifies broadband as a Title I information service, while also providing rules against blocking and throttling.  Consumer Protection Subcommittee Ranking Member Cathy McMorris Rodgers (R-WA) introduced the Promoting Internet Freedom and Innovation Act, which mirrors the protections restored by Washington state’s net neutrality law.  This bill would rely on Title I as a legal basis for net neutrality regulation.  In a letter to House Energy & Commerce Chairman Frank Pallone (D-NJ) and House Communications & Technology Subcommittee Chairman Mike Doyle (D-PA) on February 21, the sponsors of the three bills urged committee Democrats to “work with us on bipartisan legislation to ensure that Americans’ access to an open internet will be permanently protected.”

Democrats in both the House and Senate have been working on their own net neutrality legislation.  At the February 7 hearing, Chairman Pallone discussed the need to “hold Congress accountable for passing strong net neutrality laws” and his plan to work “in a bipartisan manner” to reinstate net neutrality protections.  And this past Wednesday, Democratic leaders unveiled the Save the Internet Act of 2019, which would restore the FCC’s Open Internet Order and its net neutrality protections.  The reinstatement of the 2015 regulations would once again reclassify broadband as a Title II service.  During the introduction of the bill, House Speaker Nancy Pelosi (D-CA) stated that by introducing this law, “Democrats are honoring the will of the people.”

What’s Next

Net neutrality discussions in Congress are expected to continue as lawmakers debate the issues, such as whether Title II reclassification is a necessary component of any net neutrality regulation.  It remains to be seen whether this debate will hinder the passage of bipartisan legislation.  Meanwhile, additional states are considering their own net neutrality laws, following states such as California, Washington, Oregon, and Vermont.