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GOP lacks votes to challenge FCC's Net neutrality ruling, senator concedes

Comments suggest a retreat in the fight against reclassifying broadband as a public utility.

Emotions have run high over Net neutrality. Here, protesters interrupt a meeting of the FCC commissioners in December. Brendan Smialowski/AFP/Getty Images

Senate Republicans appear to have largely abandoned efforts to fight an FCC vote later this week that's expected to reclassify broadband as a public utility-like service.

After years of grappling with how much or even whether the federal government should be involved in regulating the Internet, the commission is expected to reinstate Net neutrality rules, which are designed to make sure that consumers paying for Internet access will continue to be able to get at their favorite websites and apps. The rules were established under the leadership of FCC Chairman Tom Wheeler, a Democrat appointed by President Barack Obama in 2013.

Sen. John Thune (R-SD), chairman of the Senate Commerce Committee, conceded that a bill challenging the ruling has little chance of passing without backing from both major political parties.

"We're not going to get a signed bill that doesn't have Democrats' support," he told The New York Times, noting that Democrats insisted on delaying discussions of the bill until after Thursday's FCC vote. "I told Democrats, yes, you can wait until the 26th, but you're going to lose the critical mass I think that's necessary to come up with a legislative alternative once the FCC acts."

The comments appear to signal a retreat on the issue for Republicans unsatisfied with the proposal, which will likely become regulation later this week. Republicans in Congress have already drafted legislation that would write the Net neutrality rules into law but strip the FCC of its authority. There have also been calls from conservative lawmakers to investigate Obama's role in the shaping of the FCC's proposed new rules.

In November, Obama made a public statement urging the FCC to adopt strong Net neutrality rules and supporting the reclassification of broadband as a utility. Such reclassification could bring with it old-style telephone rules that critics say are too onerous in today's age. Wheeler has said this change is necessary to ensure that the new set of rules, which are replacing rules thrown out by a federal court a year ago, stand up to future legal challenges.

Republican lawmakers, along with broadband providers such as Verizon and Comcast, argue that a reclassification could let the government set rates on broadband service or add new taxes to them.

In a last-minute wrinkle for Wheeler, a fellow Democratic commissioner has reportedly asked the chairman to narrow the scope of the rules up for vote Thursday. Mignon Clyburn still supports broadband reclassification but proposes elimination of a legal category known as "broadband subscriber access services," according to a report by The Hill on Tuesday.

That proposal would give the FCC legal authority to monitor the "interaction" arrangements between companies concerning how back-end Internet traffic is handled. The arrangements became an issue last year when Netflix and Comcast became embroiled in a dispute that included suggestions that Comcast throttled, or intentionally slowed, the streaming of data to Netflix customers.

On Monday, Republicans on the commission requested a delay of the much-anticipated FCC vote to give the public more time to debate the issue. Commissioners Ajit Pai and Michael O'Rielly sent a letter to Chairman Wheeler asking him to release his full proposal publicly and delay the vote on the rules for at least 30 days to receive comments.

Per standard procedure, the proposal has been made available only to the five FCC commissioners and will be made public after the FCC votes on the order. A fact sheet about what is in the proposal was also released to the media.

Wheeler, who first introduced his proposal for new rules in May, said that the public has already provided ample input. The agency received more than 4 million comments on Wheeler's Net neutrality proposal after comedian John Oliver compared the cable companies to a mafioso shaking down the FCC for favors and implored the public to flood the FCC with comments.

CNET's Marguerite Reardon contributed to this report.