Republicans Offer Different Reasons for Effort to Rescind FCC Privacy Rule

(Rob Kunzig/Morning Consult)
March 10, 2017 at 1:33 pm ET

Republicans in both chambers this week introduced resolutions designed to overturn the Federal Communications Commission’s privacy rule for internet service providers. But lawmakers have offered different explanations of their rationale for doing so, given that the FCC has already blocked implementation of the rule that requires ISPs to receive consumer consent before using their app usage or web browsing history for advertising purposes.

The measures sponsored by Sen. Jeff Flake (Ariz.) and Rep. Marsha Blackburn (Tenn.) would use the Congressional Review Act to rescind a rule approved by the FCC near the end of the Obama administration, and each resolution has healthy support from GOP lawmakers. The Senate resolution has at least 23 co-sponsors, including Majority Leader Mitch McConnell (R-Ky.), and the House version has backing from all 16 members of the House Energy and Commerce Subcommittee on Communications and Technology chaired by Blackburn.

The privacy rule will almost certainly never be implemented. On March 1, Chairman Ajit Pai (R) blocked a part of the rule that was scheduled to take effect the following day, and most observers expect the commission to block the rest of the rule through one of several petitions for reconsideration now circulating at the agency. Additionally, there are now just 24 legislative days left to pass the resolutions and send them to the president’s desk before the CRA’s 60-day timeline expires.

That combination has many FCC observers asking why Republicans would spend time and political capital on the issue, particularly amid an intraparty fight over repealing and replacing Obamacare.

Some lawmakers and analysts say that the resolutions could bring Democrats to the negotiating table on comprehensive net neutrality legislation, which aims to codify certain aspects of the FCC’s 2015 Open Internet order while stripping the agency of its authority to regulate internet access under Title II of the Communications Act. Because the resolutions would preclude similar regulation of internet service providers going forward, even under a Democrat-led FCC, the argument goes that Democratic lawmakers would be more inclined to consider a legislative solution.

Commerce Committee Chairman John Thune (R-S.D.), a co-sponsor of the Senate resolution, told reporters on Thursday that there’s “no question” that as the FCC moves to reverse the privacy rule and other Title II-related provisions, the resolutions “might be an added incentive for [Democrats] to at least decide to negotiate.”

“I hope they do,” he said. “I hope it works.”

But in a brief interview the same day, Flake said there was no “calculation” to wield his resolution as a negotiating tactic.

“We always hope to count on the agencies, but we want to do the right thing here,” Flake said, when asked why Republican lawmakers feel the need to act despite Pai’s move to block the privacy rule. “You shouldn’t have two separate sets of regulations for internet service providers and for the edge providers” such as Netflix Inc. and Google Inc., he said. “So we want consistent regulation.”

Blackburn’s office did not respond to a request for comment.

Thune said Pai’s actions don’t “absolve Congress of our responsibility to act.” He told reporters on Wednesday that many lawmakers are interested in taking a political vote on this issue, suggesting the resolution could be part of a wider Republican push to use the CRA against Obama-era regulations from agencies such as the Bureau of Land Management, the Securities and Exchange Commission and the Department of the Interior.

Thune added that congressional action against the privacy rule had more “permanence attached to it than action by the FCC” — a point some analysts say could push Democrats to consider a broader bill on net neutrality that’s favored by Republicans.

Berin Szoka, president of free-market group TechFreedom, said in an interview Tuesday that because the resolutions preclude the FCC from issuing substantially similar privacy regulations in the future, the only way Democrats will be able obtain a blanket rule mandating privacy for service providers is by negotiating comprehensive net neutrality legislation.

“Ultimately, this is a way of getting Democrats to come to the bargaining table on a larger deal,” Szoka said.

Eric Null, policy council at the progressive Open Technology Institute, largely agrees with that premise. “The more Republicans do to undermine everything that we’ve worked for, it will increase the likelihood that Democrats come to the table,” he said in a Thursday interview.

Some Democratic lawmakers disagree.

Sen. Ed Markey (Mass.), a strong supporter of broadband privacy and the FCC’s Open Internet order, scoffed at the notion that the Republican-backed resolutions would bring Democrats to the negotiating table. “Do we get privacy back? Do we keep the privacy rules under that?” he said in a brief interview Thursday. “I’m trying to follow the logic.”

Dallas Harris, a policy fellow at the progressive tech group Public Knowledge, said she thinks the CRA resolution “poisons the well” on talks between Republicans and Democrats on net neutrality.

“Right out of the gate, this is your priority?” she said in a Thursday interview. “That doesn’t signal to me that they’re serious about protecting consumers here — that they’re going to pass a net neutrality bill that’s actually going to do that.”

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