WASHINGTON D.C. —­­ Rep. Mike Coffman (R-CO) today unveiled draft legislation to codify net neutrality rules in statute. His “21st Century Internet Act” marks the third Republican legislative proposal since 2011, the last time Democrats offered legislation of their own. Finally, Coffman announced that he would sign a discharge petition introduced by Democrats to use the Congressional Review Act (“CRA”) to undo the Republican FCC’s 2017 Restoring Internet Freedom (RIFO), which purports to restore the 2015 OIO and, with it, Title II reclassification.

“Federal legislation has always been the only way to end the net neutrality fight,” said Berin Szóka, President of TechFreedom. “When Rep. Coffman announced his intention to introduce legislation back in December, everyone who wants a legislative compromise cheered. He had a golden opportunity to bridge the divide between the two sides by finally providing a concrete alternative to legislation Republicans floated in 2015. Unfortunately, his bill fails to address the most fundamental concern driving this debate: the broad powers to regulate the Internet claimed by the FCC. It’s been obvious for years that the essential quid pro quo that would make legislation possible is closing the Pandora’s Box of broad Internet regulation in exchange for codifying net neutrality protections. After all, with clear statutory authority, the FCC wouldn’t need such sweeping powers to protect net neutrality. But any bill that leaves the FCC with sweeping discretion to regulate the Internet beyond net neutrality is dead on arrival — Coffman’s included.”

Unlike the legislation introduced by Rep. Marsha Blackburn (R-TN) last December (itself modeled on the 2015 discussion draft offered by Sen. John Thune (R-SD) and Rep. Fred Upton (R-MI)), Coffman’s bill would not limit the FCC from using Title II to regulate broadband. (None of these proposals mentions Section 706, the other source of authority to regulate Internet services claimed by the FCC in 2010, and again in 2015, but reversed in 2017.)

“Every FCC Chairman, starting with President Clinton’s, has recognized that Title II price regulation would deter investment, innovation and competition in broadband,” explained Szóka. “Coffman’s bill addresses only half of this problem: barring ex ante rate regulation of broadband prices would leave the FCC free to regulate broadband prices on a case-by-case basis. In remarks on the Senate floor, Democratic Minority Leader Chuck Schumer recently made clear that he wants the FCC to do precisely that — signaling that regulation of broadband prices, one way or another, has become the latest concept thrown into the ever-expanding, vague, feel-good slogan of ‘net neutrality.’ Title II would give the FCC authority to regulate every other aspect of an ISP’s business, despite the multiple empty promises of ‘forbearance’ made by the FCC in 2015.”

Unlike the Blackburn bill, the Coffman bill bans paid prioritization and replicates the “general conduct standard” contained in the FCC’s 2015 Open Internet Order (OIO) (but not the 2010 OIO). The bill also goes significantly beyond the 2015 OIO to include a broad duty by ISPs to interconnect with other Internet companies, such as Netflix; for the first time in the history of the Internet, ISPs would be required to carry such traffic for free. In 2014, Democratic FCC Chairman Tom Wheeler called interconnection a “different matter that is better addressed separately.”

“Rep. Coffman’s bill rightly attempts to address obvious sticking points for Democrats,” continued Szóka. “Yes, any legislative compromise will need to be broader than Republican proposals have been thus far. But compromise legislation cannot allow the FCC unfettered discretion to go beyond core net neutrality principles — as Coffman’s bill does, by allowing the FCC to strike down any practice or deal it decides is ‘unreasonable.’ This is the standard of Title II common carriage regulation. The alternative has been clear since at least 2005, when a balanced, bipartisan group of leading telecom experts proposed the Digital Age Communications Act (DACA): yes, give the FCC broad authority, but require the agency to justify its interventions in the marketplace under the unfair methods of competition developed by the Federal Trade Commission in litigation over the last century. Top Democratic thought leaders signed onto DACA because it included a separate, lower threshold for policing interconnection. That compromise solution has always been the only way out of this political deadlock.”

“Signing the CRA discharge petition is an empty political gesture,” concluded Szóka. “Even if the CRA were to pass, and Trump chose not to veto it, it would not do the thing Democrats say is needed: restore Title II. That’s because the FCC’s 2015 reclassification of broadband under Title II is an adjudicatory order, not a legislative rule, and is therefore not subject to the Congressional Review Act. Two months have passed since we published our legal analysis explaining why this is so, without any substantive response from advocates of the CRA — nor was there any analysis before the Senate’s vote in favor of the CRA explaining why the CRA would do what its sponsors claim. The CRA is a pure distraction from real, substantive legislation.”

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