Providing for Congressional Disapproval of A Rule Submitted By the Federal Communications Commission
Floor Speech
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Mr. THUNE. Madam President, I rise today in support of net neutrality. Let me say that again. I rise in support of net neutrality.
Contrary to the assertions that some of our colleagues on the left have made, there are many of us who believe that codifying net neutrality principles makes sense if we really want to solve this problem. What doesn't make sense is this misguided resolution.
All of us value the internet. It connects us to commerce, friends, family, news, learning opportunities, and entertainment. Most Americans expect their internet experience to remain free from meddling by anyone. It doesn't matter if it is a cable company or an unelected bureaucrat, Americans appreciate online freedom.
If this resolution offered these protections and simply implemented widely supported net neutrality principles, I would support it. Unfortunately, this isn't the case.
The resolution offered by Senator Markey would impose partisan, onerous, and heavyhanded regulations on the internet.
Some of these regulations lack a fundamental connection to net neutrality principles and harm consumer freedom. Net neutrality, for example, isn't about regulating mobile phone plan offerings to meet a government internet standard. But the Markey resolution would restore rules that the Obama Federal Communications Commission used to scrutinize such popular and affordable plans.
Net neutrality principles don't necessitate government rate regulation on companies working to connect Americans in rural areas-- places like my State of South Dakota--or on upgrading existing networks. But, again, the Chairman of the Obama FCC nonetheless defended the need for broad authority to threaten rate regulation, and that is exactly what the Markey resolution seeks to restore. The implicit threat of such government intervention and statements can have a profound impact on innovation and the 21st century internet.
The internet has certainly thrived under a model that rejects data discrimination. Needless to say, before 2015, it had never before faced such a threat of increased government control. Net neutrality--the idea that legal internet traffic should operate transparently and without discrimination--doesn't represent the heavy hand of government. The heavy hand of government is, however, plain to see in the plan that Democrats first passed in 2015 and are now seeking to reimpose.
The Democrats' plan relies on a legal framework passed by Congress in the 1930s to regulate telephone monopolies. This framework existed for an era and technology that lacked competition and the entrepreneurship of today's internet-based economy.
Last year, the new leadership at the Federal Communications Commission widely discarded these rules. Net neutrality wasn't the problem. The Commission's concern was that onerous, depression-era rules were having an adverse effect on efforts to connect more Americans to the internet and upgrade service. For Congress, the path to restore net neutrality protections while avoiding these unnecessary side effects is straightforward legislation.
This is what the Los Angeles Times had to say about this in their editorial. Last week, the editorial board of California's largest newspaper wrote an important analysis in an editorial entitled ``Senate Democrats move to revive net neutrality rules--the wrong way.'' The Times wrote:
Rather than jousting over a resolution of disapproval, Congress needs to put this issue to bed once and for all by crafting a bipartisan deal giving the commission limited but clear authority to regulate broadband providers and preserve net neutrality.
But as good as it was to see them push back against the wrongheaded approach taken by the new Republican majority on the Federal Communications Commission, the maneuver is likely to be more of a distraction than a solution.
At issue is how to preserve net neutrality. Broadband providers that serve home internet users face little real competition, and they are uniquely positioned to distort competition online by, for example, favoring particular websites and services for a fee.
After several earlier net-neutrality efforts ran into legal trouble, the FCC's Democratic majority in 2015 classified broadband access service as a utility and imposed a set of strict neutrality rules. Last year, however, the commission's new Republican majority voted not just to rescind those rules, but effectively to drop all efforts by the FCC to preserve net neutrality.
On Wednesday, Senate Democrats moved to force a vote on a resolution to restore the 2015 rules, and they have 50 Senators lined up in support. Yet the resolution faces next- to-insurmountable odds in the House, where top Republicans have praised the FCC's deregulatory approach, and with like- minded President Trump. The most meaningful fights will take place in the courts and in state legislatures, where net neutrality supporters are seeking to restore the 2015 rules or impose similar ones at the state level.
Even opponents of the strict 2015 rules recognize that the continual legal and regulatory gyrations are a problem. Rather than jousting over a resolution of disapproval, Congress needs to put this issue to bed once and for all by crafting a bipartisan deal giving the commission limited but clear authority to regulate broadband providers and preserve net neutrality.
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Mr. THUNE. Madam President, in my hand, I hold the 2015 draft text of legislation I released with my colleagues in the House of Representatives, Congressman Fred Upton and Congressman Greg Walden. Since 2015, I have publicly and consistently been ready to work with my colleagues across the aisle on bipartisan net neutrality legislation. Specifically, my draft proposed giving Federal regulators new authority to ban blocking, throttling, and paid prioritization of legal internet content. It did this without relying on the heavyhanded use of law written to police phone monopolies, which is what we are talking about here. We are talking about a 1934 law governing the 21st-century internet. Think about that. That is precisely what this resolution would do.
I recognize that this draft legislation I came up with isn't perfect. My draft obviously did not anticipate all the concerns my colleagues raised, and of course there is always room for compromise. That is what legislative discussion and legislative negotiation are all about. But I need a partner from the other side of the aisle who shares my commitment to crafting a bipartisan solution that puts net neutrality first.
Some of my colleagues on the other side of the aisle have certainly expressed a view about the need for legislation. Some of them come up to me privately, offline, and say: You are right. We need to do this legislatively. We need to put clear rules of the road in place. This is not the way to solve this problem.
But very few of them are willing to say that publicly. My colleague and the distinguished ranking member of the Commerce Committee's Subcommittee on Communications and Technology told the publication TechCrunch only 6 months ago: ``My point of view--and by the way, I had this point of view when it was President Obama and Tom Wheeler [at the FCC at the time], to the chagrin of my progressive friends--is that we should legislate.''
This statement was made with knowledge and virtually on the eve of the FCC's final vote to disassemble the 2015 rule. So what changed? Why aren't we debating a bipartisan bill instead of this partisan resolution? Some on the other side of the aisle reached the cynical conclusion that exploiting concern about the internet outweighed the value of working with Republicans to pass net neutrality protections. For others who had a genuine desire to work with me, the forces of a highly politicized campaign to impose a Democrat-only solution can overwhelm the best of intentions.
Make no mistake--the campaign behind this Congressional Review Act resolution has been primarily driven by fearmongering hypotheticals, misdirection, and outright false claims. To make that point, this March, the Washington Post Fact Checker took Senate Democrats to task for a particularly egregious claim that failure to pass the Markey resolution would lead to a slower internet. The fact check concluded that the examined claim--made through the Democratic caucus's official Twitter account--conveyed the false impression that a slowdown is imminent. Fact Checker wrote that ``there's scant evidence that Internet users should brace for a slowdown.'' What that meant is that statement by the Democratic caucus on this particular subject got not one, not two, but three Pinocchios from the Washington Post for being a false claim--from the Washington Post Fact Checker.
5, 2018] Will the FCC's Net Neutrality Repeal Grind the Internet to a Halt? (By Salvador Rizzo) ``If we don't save net neutrality, you'll get the Internet one word at
a time.''--U.S. Senate Democrats, in a tweet, Feb. 27, 2018 The Pinocchio Test
The debate over net neutrality is reshaping the Internet and raising big-picture questions about modern life. But we can't help but feel that we've spilled a lot of pixels here analyzing something that simply hasn't happened.
Senate Democrats, industry leaders and net neutrality activists say the FCC's move to toss out the Obama-era rules will bog down and end the Internet as we know it. The biggest broadband providers forcefully reject this claim, saying they have no plans to block or throttle content or offer paid prioritization.
That could change in time. As the D.C. Circuit said, broadband companies could make more money from paid prioritization, and it's ``common sense'' to think they might try it. These providers have the ability and the incentive to slow down or speed up Internet traffic, and they've engaged in these practices in the past.
For now, though, there's scant evidence that Internet users should brace for a slowdown. Yet the Democrats' tweet conveys the false impression that a slowdown is imminent unless net neutrality rules are restored. This transmission error merits Three Pinocchios, but we will monitor the situation and update our ruling depending on whether the fears were overstated or came true.
Three Pinocchios
(Senate Commerce Committee note: the submission to the Senate Record includes only the conclusion of the Washington Post's fact check story.)
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Mr. THUNE. In reality, all major cable and phone providers have said they will continue net neutrality policies. Under the new rules being put in place, Federal agencies can still take action against privacy violations and unfair business practices by internet companies.
In stark contrast, one unavoidable irony of the Markey resolution, as observed by an editorial in today's Wall Street Journal, is that it would actually weaken online consumer privacy protections by taking the only agency enforcing them off the beat. If this resolution were ultimately to be enacted--which it won't, but if it were, it would take the Federal Trade Commission, which currently regulates and polices privacy issues, completely out of the equation.
To be sure, Congress still needs to set long-term protections for the internet, and it shouldn't delay. But the significant harm uncertainty inflicts on the internet will manifest itself through stifled investment and innovation over time rather than on consumers in a sudden wave of net neutrality violations. That is just a simple fact.
After all, the new rules, approved under the Trump administration, closely follow those that long regulated the internet before 2015 and are largely, although not completely, in effect now.
One thing I want to continue to hammer is that what we are talking about here are the rules that were in place for the first two decades of the internet. For the first two decades of the internet, we operated under what was called a light-touch approach to regulation. Under that regime of light touch, the internet prospered, flourished, grew, expanded, and innovated to the point where it has become a huge economic engine in our economy. So what was the 2015 FCC ruling designed to solve? That, frankly, is a very good question. But the fact is, what the FCC is proposing to do and will do on June 11 of this year is to go back to the 2015 rules--the rules that were in place for the first two decades of the internet.
I would tell you that on June 12, after these rules go into effect, no consumer in this country is going to see any change from what they see today. They are still going to be able to watch the internet--they are still going to be to go to all their favorite social media platforms. There isn't going to be any change from what we have seen up to this point because that is what we are going back to--our rules that were in place for two decades, under a light-touch regulatory approach, that allowed the internet to explode and prosper and grow.
The Markey resolution is offered to this body without opportunity for amendment or any bipartisan input about what the rules governing the internet should say. A vote against the Markey resolution is a vote for ending this cynical exploitation of the internet. A vote against the Markey resolution is a vote for the Senate to get to work on bipartisan net neutrality legislation. That is what the L.A. Times said: Pass legislation. That is the best way to solve this, not coming up with this bizarre exercise, which we all know isn't going anywhere but will give the activists and the donors out there on the far left an opportunity to take this campaign to the House of Representatives, where it isn't going anywhere. Of course it would be vetoed by the President even if it did. So all we are doing is stalling, delaying, making it more difficult to get to a solution on this because what it will do is prevent those who are truly interested in a bipartisan solution and answer on net neutrality from coming to the table in order to make that happen.
As I have said, we have been working on this for a long time, and I have been looking for a Democratic partner. All we need are a few courageous Democrats who are willing to acknowledge what this is--which is a political, partisan charade--and get serious about bipartisan legislation, because there isn't going to be a single amendment that can be offered to this. This is not going anywhere.
If we really, truly want to solve the problem, there are fairminded people who are serious about this who would like to sit down across the table and work on a draft of legislation that would put internet principles in place and would put consumer protections in place but would use a light-touch regulatory approach--not the 1930s approach this resolution would turn to--to regulate the 21st-century internet. Frankly, I am at a loss to understand why any rational, reasonable person could come to the conclusion that using a 1934 law and regulating the internet like a public utility--a Ma Bell telephone company--would be the right approach in the age in which we live where the internet is thriving and prosperous under a light-touch regulatory regime. Unanimous Consent Request--S. Res. 52 be returned to the calendar and the Senate proceed to the immediate consideration of S. 2853. I further ask that it be in order for 10 amendments, equally divided, between the managers or their designees and relative to the bill to be made pending; further, that there be 10 hours of debate, equally divided between the managers or their designees, and that upon the use or yielding back of that time, the Senate vote on any pending amendments; finally, that upon disposition of the amendments, the bill, as amended, if amended, be considered read a third time and the Senate vote on passage of the bill.
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Mr. THUNE. Mr. President, what you just heard is an objection to having a reasonable debate.
To the point that the Senator from Massachusetts made, clearly the unanimous consent request asks for--calls for--an opportunity to have amendments considered by both sides of this discussion. What that tells me is that what this is about isn't serious legislating; it is about, again, the political theater associated with this congressional resolution of disapproval, which has absolutely no future, is going nowhere, and does nothing to address the fundamental underlying problem that colleagues on both sides acknowledge needs to be address.
For the record, I will point out that we did attempt to bring up a serious piece of legislation, one that provides consumer protection, that bans blocking lawful content, that bans the throttling of lawful content, that bans paid prioritization--the very things most of my colleagues on the other side want addressed.
Frankly, no piece of legislation is perfect, and I would say to my colleague from Massachusetts that we would be more than willing to enter into a discussion and a debate, with an opportunity to offer amendments, in order to perfect this piece of legislation. But, frankly, if we continue down this path with the CRA, all we are going to do is waste more time--valuable time, I might add--and continue to live in a cloud of uncertainty where one FCC to the next continues to change the rules and where companies spend millions of dollars in litigation in courtrooms on lawsuits rather than ploughing it into infrastructure, investment, and new and innovative technologies that literally could deliver higher speed, faster internet services and higher quality services to people around this country, including those in rural areas who desperately need those types of services made available to them.
Mr. President, I reserve the remainder of my time.
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Mr. THUNE. Mr. President, we are about to vote on this Congressional Review Act resolution of disapproval dealing with this issue of net neutrality.
Let me say again what I said at the beginning of this discussion earlier today; that is, I support principles of net neutrality that can be enshrined in law, that actually do address the issues people on the other side are concerned about, whether that is a ban on blocking of lawful content, a ban on throttling of internet speeds, a ban on paid prioritization that would create fast lanes, slow lanes, and that sort of thing. Those are things on which I think there is pretty broad agreement.
Frankly, it seems to me, at least, there is bipartisan support for pursuing a legislative solution to this--to put into law, to codify once and for all those principles of an open internet. Instead, we are having this fake argument over a Congressional Review Act resolution of disapproval, which is going nowhere, and my colleagues on the other side know that. All it does is prolong the period of uncertainty in which we have been operating for some time, where internet service providers are not investing in new technologies, innovation, and infrastructure and instead are investing in lawyers and litigation as this cloud of uncertainty hangs over the regulation of the internet.
What our colleagues on the other side are proposing is simply this: Regulate the internet like a public utility in the same way that Ma Bell was regulated back in the 1930s, because the law they would use to regulate the internet is title II of the 1934 Communications Act-- basically saying: We want to take a law that is 80 years old and use it to regulate a 21st-century innovation like the internet--the internet that exploded under the light-touch regime that was in place up until 2015.
In 2015, the FCC decided they wanted to use the heavy hand of government regulation as opposed to a light touch. What this FCC has said, simply, is that we are going to go back to the light-touch regulation that was in place for the first two decades of its existence, two decades that led to explosive growth, dramatic increases in productivity, and economic opportunity for Americans all over the country. Here we are today talking about a Congressional Review Act resolution of disapproval that would roll back that FCC's decision in an attempt to restore and put back in place the heavyhanded regulation of title II under the 1934 Communications Act.
I think, frankly, that we can solve this issue quite simply; that is, to sit down in a bipartisan way and figure out a way to enshrine into law those principles of an open internet that would ban the things I just talked about--ban blocking, ban throttling, ban pay prioritization, but do it in a way that does not draw on the title II authority that essentially gives the FCC the authority, if they want to, to regulate rates.
This is a heavyhanded government approach to regulating the most powerful economic engine we have seen literally in generations. I think the clear vote here today is in favor of legislation that would put those rules into effect and against a Congressional Review Act resolution of disapproval, which is simply an attempt to, I guess, gain partisan advantage with an issue that people seem to think will be useful in the upcoming elections.
Honestly, it is not going anywhere. We all know that. I think the sooner we conclude that and the sooner we get serious about sitting down together across from each other and actually putting into law these principles of an open internet, the better off we will all be. I mentioned this earlier today. There are a number of our colleagues who have made statements publicly, as recently as yesterday at a Commerce Subcommittee hearing, where they supported that approach of bipartisan legislation. I had colleagues on the other side who have made public statements--and I quoted some of them today--in support of a legislative solution along the lines of what I am proposing here. Of course, we have had multiple examples of misstatements and hyped-up statements that aren't grounded in any sense of reality, so much so that even a Washington Post Fact Checker came out and said that the statements that were being made by the Democrats warranted three Pinocchios. The L.A. Times just this last week editorialized: ``Rather than jousting over a resolution of disapproval, Congress needs to put this issue to bed once and for all by crafting a bipartisan deal giving the commission limited but clear authority to regulate broadband providers and preserve net neutrality.''
That is the way to do this. It is not to have an FCC that bounces back and forth from administration to administration at the whim of whatever the political wins of the day are or, perhaps even worse yet, spends a lot of time in court litigating this issue--millions and millions of dollars that could be spent investing in innovation and new technology and new infrastructure that could deliver higher, faster speeds, higher quality of services to people across this country, including those in rural areas who have missed out on a lot of this. You are not going to get broadband providers to deliver services or invest in rural areas if they are operating under a cloud of uncertainty, which is what this CRA, if it were successful, would ultimately lead to.
I simply ask our colleagues on both sides of the aisle to reject this ill-fated, frankly, charade of an exercise that we are going through in exchange for a true discussion of bipartisan legislation. I mentioned earlier that I had a draft from 2015 that we put together. I have had numerous opportunities to discuss that draft with Members on the other side. We have socialized some of these issues. We shopped them around. It certainly is not the end-all product, but that is what legislation is about. It is about the opportunity to sit down, take input from both sides, and come up with a bipartisan solution. I think that is certainly within our reach here if we are willing to do it, but this is not the way to do it.
This is a dead-end canyon, which does nothing to solve the issue. All it does is perhaps whip up some people who are perhaps interested in trying to use this as a political wedge issue, but it is not going to do anything to solve the problem. I urge my colleagues to reject and vote no on this resolution of disapproval, and let's get serious about legislating.
I yield back the remainder of our time.
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