Republicans Want to Rewrite Tech Regulation—but They'll Have to Make Peace With Net Neutrality First

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With control of the Senate, top Republicans are going to work on an ambitious plan to overhaul government regulation of the Internet, television, and telephone industries.

Their effort to rewrite the Communications Act could have broad implications for how we all communicate and consume information. But the whole plan could collapse amid partisan fighting over net neutrality.

The goal of the communications law update isn't to kill net neutrality, but it will be hard for Republicans to avoid the issue. They're fiercely opposed to any regulation of Internet service, and many conservative lawmakers will demand that Congress strip the Federal Communications Commission of authority over the issue.

Any bill that would repeal net neutrality would face a Democratic filibuster in the Senate and an almost certain veto from President Obama. So Republicans will have to decide if their hatred of net neutrality is stronger than their desire to update the nation's aging technology rules.

It wouldn't be the first time that net neutrality ruined an attempt to rewrite communications law. In 2006, the House passed an update to the Communications Act from then-Energy and Commerce Committee Chairman Joe Barton, a Texas Republican, but partisan battles over net neutrality derailed the bill in the Senate.

"It's inevitable that net neutrality is going to be a part of this," a Democratic aide predicted.

A Republican aide for the House Energy and Commerce Committee said lawmakers are still in the information-gathering stage and that it's too early talk about whether the bill will address any particular issue.

The Communications Act, first enacted in 1934, created the FCC and outlined the agency's powers. It's the foundational law for regulation of every company that transmits information over wires or airwaves. That now includes cable, satellite, broadcast TV, radio, cell phones, landline phones, and Internet service.

Overhauling the act is a top priority for Sen. John Thune, a South Dakota Republican who is expected to become chairman of the Senate Commerce Committee. His counterparts in the House, Energy and Commerce Committee Chairman Fred Upton and Communications Subcommittee Chairman Greg Walden, have already started to collect feedback from industry and advocacy groups on how they should rewrite the law.

Nearly everyone agrees that the Communications Act is outdated. The law was last updated in 1996, when most people were still accessing the Internet on dial-up connections and before Google even existed.

But rewriting the law will be no easy task. Tweaking one provision might boost some industries while costing others billions of dollars. Some of the nation's biggest and most powerful corporations are going to be ready to fight for their own interests.

Lawmakers are expected to review the FCC's subsidy programs for rural and poor consumers, its authority over telecom mergers, its management of the nation's airwaves, and the various regulatory perks and obligations that local broadcast TV stations have.

But few issues are as politically explosive as net neutrality. Supporters of net neutrality argue that government rules are necessary to preserve the Internet as an "open" platform where all traffic is treated equally. They want to prevent Internet service providers like Comcast from blocking websites or favoring some sites over others.

Republicans view net neutrality as a government takeover of the Internet. They warn that restrictive regulations will only stifle investment in broadband networks and prevent innovative new business models.

The FCC first enacted net-neutrality rules in 2010, but a federal court struck them down earlier this year. The FCC under Chairman Tom Wheeler is expected to enact new rules as soon as next month.

FCC officials are seriously considering whether to invoke the agency's sweeping powers under Title II of the Communications Act, which the agency already uses to regulate phone companies. Broadband providers and Republicans warn the section would turn the Internet into a public utility, crushing the industry under heavy-handed regulation. But net-neutrality advocates say Title II is the only way to enact real protections.

Some Republicans will probably try to use the new Communications Act to strip the FCC of net-neutrality authority or at least keep the agency from using its Title II powers. One broadband industry official said companies would hope to reverse Title II rules with a new Communications Act, but the industry would be fine leaving the FCC some power over net neutrality.

"This is a once-in-a-generation opportunity here," a different broadband industry official said. "I have a hard time seeing the debate revolving around net neutrality."

Berin Szoka, the president of libertarian group TechFreedom and a net-neutrality skeptic, said Republicans should be willing to compromise on the issue. "The key is giving the FCC authority to deal with core net-neutrality concerns," he explained.

Harold Feld, a net-neutrality supporter and the vice president of consumer group Public Knowledge, said that for some Republicans, net neutrality is like a religious issue. They're likely to do everything they can to stop FCC rules.

But he also said Thune and other Republicans don't want to see the controversy destroy their attempt to rewrite communications policy. And he claimed Republicans realize the public is on the other side of the issue.

"I think the people who are looking to 2016 don't want to cast themselves as the handmaidens of special interests," he said. "If the Republicans go out there and say, 'Let's let Comcast screw with your Netflix subscription,' the American people are going to be very unhappy."

This article is from the archive of our partner National Journal.