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Could Congress Settle the Net Neutrality Debate, Once and for All?

WASHINGTON — As net neutrality goes through its fourth go-around in the courts, what are the chances that Congress will find a fix?

The new Democratic House majority held its first hearing on the issue on Thursday, and Republicans came to the session with a series of legislative proposals.

Rep. Greg Walden (R-Ore.), the committee’s ranking member, said he was introducing legislation that would prohibit ISPs from blocking, throttling, and paid prioritization. Other legislation is being proposed by Rep. Bob Latta (R-Ohio), ranking member of the communications and technology subcommittee, and another from Rep. Cathy McMorris Rodgers (R-Wash).

“Despite the long track record on net neutrality, I believe there is plenty of room for consensus here,” Latta said.

The odds of that happening, however, are still long.

Democrats want to see the text of the legislation, but they’ve rejected GOP proposals in recent years, deeming them as offering insufficient protections and FCC oversight.

Rep. Mike Doyle (D-Pa.), who chairs the communications and technology subcommittee, told reporters after the hearing that “the devil is also in the details.”

He suggested that Democrats would want more than just a set of rules to prohibit blocking, throttling, and paid prioritization.

“What we are interested in is that there are strong protections for consumers that not only cover things that were done in the past, but we do in the future too. The technology changes daily, we don’t know what next year looks like. So we want to make sure that whatever we do, that there is the flexibility there to deal with events in the future as well as events in the past.”

The Obama-era FCC in 2015 adopted a set of net neutrality rules that included a “general conduct” standard, which essentially ensured that the agency could be a watchdog for ISPs’ unreasonable, harmful behavior as technology evolved.

That “general conduct” standard was rooted in the Obama-era FCC’s move to reclassify internet service as a Title II common carrier, a regulatory maneuver that put the agency on a more solid legal footing to enforce robust rules of the road.

But the Trump-era FCC rolled back net neutrality and the reclassification, stripping the agency of a good chunk of its authority and leaving ISPs with few rules at all.

Net neutrality activists sounded the alarm, Democratic lawmakers campaigned on the need for stricter regulations, and some states even passed their own rules. The Trump-era FCC’s repeal is being challenged in court, and a three-judge panel that heard the case last week is expected to rule by this summer.

“Until strong open internet protections are enacted, our only hope is that millions of Americans are fed up and will hold Congress accountable for passing strong net neutrality laws,” said Rep. Frank Pallone (D-N.J.), the chairman of the Energy and Commerce Committee.

At the hearing, Republicans continued to attack the Title II reclassification as regulatory overreach.

One of the witnesses, former FCC chairman Michael Powell, now the head of the cable industry lobby NCTA — The Internet and Television Association, said there was “unique common ground” to establish a set of net neutrality rules.

When he was chairman of the FCC, he spelled out a set of net neutrality “fundamental freedoms,” which were broad principles tied to the idea that consumers can access any content of their choosing. Although those principles were not regulations, Powell on Thursday argued that it’s in the interest of ISPs to stick to them. “I think it is a misnomer that ISPs don’t have a corporate self-interest in an open Internet,” he said.

Also testifying was Tom Wheeler, who led the FCC when it passed the 2015 rules. He suggested that legislation should be based on that regulatory framework, including provisions that would ensure that the government would have oversight as the ecosystem evolves.

“We do not know what the internet is going to be,” he said. “We can’t sit here and make Netflix-era decisions that may not apply tomorrow.”

He argued that wanting an open internet, but not common carrier rules is “like saying I am for justice, but not the courts overseeing it.”

As much as the different sides reiterated their positions in the hearing, some lawmakers came away more optimistic that a compromise eventually could be worked out. Rep. Kurt Schrader (D-Ore.) said he was “very pleased with the tenor and tone of the conversation, and I think there is an opportunity by the end of this Congress to legislate.”

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