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Net neutrality rescue effort is 'exercise in futility,' says Senator John Thune

The Republican is OK with policies to prevent ISPs from throttling internet speeds, but calls Democrats' current efforts political grandstanding.

The fight to preserve Obama-era net neutrality rules is nothing more than political theater. At least, that's the way Sen. John Thune sees it.

Thune, a Republican from South Dakota, chairs the Senate's Committee on Commerce, Science, and Transportation, which oversees both the Federal Communications Commission and internet policy. He's been critical of Democrats' use of a legislative loophole called the Congressional Review Act, which gives Congress 60 legislative days to undo regulation. Democrats in the House and Senate are trying to use it to turn back a repeal of the strict net neutrality rules that the FCC adopted in 2015.

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Sen. John Thune, a Republican from South Dakota, voted against a Democrat-led resolution this week to stop the FCC's repeal of Obama-era net neutrality protections.

Tom Williams

The FCC, now led by Republicans, voted in December to repeal those rules, which prevented broadband and wireless companies from blocking or slowing access to the internet and from charging companies like Netflix and Etsy more to reach their customers faster.

The FCC has set an expiration date of June 11 for the old rules.  

Senate Democrats scored an unexpected victory Wednesday when they got three Republicans to cross party lines and support their resolution, in a 52-47 vote, to invoke the CRA and shut down the repeal. But the effort still has a long way to go. It has to get through the Republican-controlled House and then get signed by President Donald Trump, who has made eliminating regulation a cornerstone of his presidency.

Even though Republicans like Thune say they support the general principles of net neutrality, the  rules have become highly politicized, with Democrats in Congress and many internet companies, such as Google, Mozilla and Facebook, strongly voicing their support. A majority of the public also supports net neutrality.

The issue for Thune and many other Republicans is how those 2015 rules classified broadband as a Title II utility under the Telecommunications Act. That means internet providers and their services would be treated like the old telephone network, giving the FCC the authority to regulate the industry's infrastructure and to set pricing.

Thune argues that the net neutrality rules hurt investment and stifle innovation. He called the rules "outdated" and "heavy-handed" before Wednesday's vote. And he's asked his colleagues to revive a bill he proposed in 2015 that sets the general principles of net neutrality into law without giving the FCC power to control broadband infrastructure.

CNET chatted with Thune about the CRA vote. Below is an edited transcript of our conversation.

Q: What do you think the Senate passage of the CRA means for net neutrality?
Thune: It's a setback for net neutrality policy because many of the Democrats are going to want this process to play out before they are willing to sit down and work on bipartisan legislation. I think it's a real loss for people who are serious about actually coming up with a solution to the problem.

You support net neutrality in principle, including rules prohibiting blocking and throttling. What about paid prioritization or so-called fast lanes?
Thune: The ban on paid prioritization is in our draft bill from 2015, which I referred to on the floor of the Senate. It's not a perfect piece of legislation, but we included things that most Democrats have said that they are opposed to. They want to make sure that there is a ban on blocking, throttling and paid prioritization. So those were all included in our draft legislation.

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Democrats have criticized this legislation because it gutted the FCC's authority. Is there any room for FCC oversight of the internet?
Thune: We were willing to negotiate that. That was an issue that Democrats were interested in, so we considered some sort of general conduct rule. We were in negotiations on that in 2015 when the FCC acted. Then the Democrats lost interest. At that time you had Obama in the White House, and we were trying to craft a bill that we thought he would ultimately sign into law.  But I think that issue, like so many others that perhaps weren't addressed in that legislation that could satisfy some Democrats, are still open for negotiation.

But until we sit down and try to have this discussion, it's unlikely we are going to get to the compromise and consensus bill that would attract enough votes in the House to get sent to the President.

The CRA detracts from that because I don't think anyone is going to seriously sit down and talk about that issue or some of the others, until the CRA is ultimately disposed of one way or the other. I think the Democrats will drag this thing out for months and try to get through the midterm elections and maybe into next year.

You said Republicans were willing to compromise in 2015 when Obama was president. Is that still the case now that Republicans control Congress and the White House?
Thune: It is a new situation and obviously as you look at crafting a bill you have a slightly different perspective on some of these issues than perhaps you did under the previous administration. But I do think that the FCC oversight was one of the concerns that was raised by [Sen. Brian] Schatz [Democrat from Hawaii] and others. And we have always been willing to negotiate on that.

There is some reasonable position we can reach and some compromise that we can get to -- a middle ground that doesn't impair the type of investment in the internet and expansion into 5G we need. We are willing to look at everything. But we can't do that until we decide in good faith to sit down and start that negotiation.

What do you think will happen with the CRA fight in the House?
Thune: My guess is that this thing will go down like a shot dog over there.

It's an exercise in futility. I think they'll use this issue for fundraising purposes and to motivate activists. And I think they actually believe this is an issue that people will vote on in the fall. But when June 12 rolls around and the internet still works and people can still watch Netflix, I think it'll be an issue that doesn't have the political pop that the Democrats are hoping for.  

In the end, the House will vote it down. There's also still the presidential veto if the House by  some miracle agrees to it. But they are not going to.

Why are you so certain about that?
Thune: The CRA process has been used historically to undo or repeal or prevent regulations that are viewed to be harmful. It's never been used to re-regulate. I find it hard to believe that a Republican and largely conservative House is going to in any way support something that re-regulates the internet.

You're also confident that President Trump would veto it should it pass?
Thune: He has indicated that to his people. There is no future in which this CRA does anything other than generate energy and momentum among activists and donors who care about this issue. But the average person, frankly, doesn't care. So I am still at a loss as to why we are going through this other than it is a political exercise and it is a political season.

You don't think young voters will be energized and go out to polls in November on this issue?
Thune: It's clear Democrats are using this as an issue to get votes. This is about trying to animate and motivate millennials to go out and vote on this issue. But I don't think that's going to work. When you get outside the organized phone campaigns and groups ginning this up, it doesn't resonate with average people. Most people vote their pocketbooks and economic issues. Also, once people see that the internet will work just as well after June 11 as it does today, it won't get much traction.

If the Democrats were honest about it, they'd tell people that if they're interested in net neutrality that the CRA isn't the way to get there. For one, these rules they're trying to protect hinder infrastructure investment. You've got the Title II rate regulation that will always create a cloud around this issue.

That's just one reason why this isn't going to get the solution that people who say they support net neutrality want. If you're really interested in net neutrality, and you want those principles codified into law, the only way to do it is through a bipartisan legislative process, not through a futile CRA.

So you think there still needs to be legislation?
Thune: I am undeterred that Congress still needs to pass a bipartisan net neutrality law.

Are you worried that broadband companies will block or slow down access to the internet after June 11 when the rules are set to expire?
Thune: It hasn't happened yet. We've been talking about hypotheticals. But if it helps us prevent Title II regulation, which in my opinion is incredibly harmful, and I think will probably happen again in the next administration and the next FCC, then yes. If broadband companies spend all their money in litigation when they could be putting money into investment in infrastructure, innovation and technology then that hurts places like South Dakota in the long run.

The only way you're going to get high-speed internet services delivered to rural parts of the country is if companies are willing to make the investment. If codifying net neutrality laws prevents a much worse outcome, which is the use of Title II to regulate the internet in a way that stifles that investment and innovation, I think it's a better outcome.

But I don't have the fears that people on the left do -- or at least the fear-mongering that's going on -- that all of a sudden our speeds are going to get throttled and that sort of thing. But if it will get people comfortable using a mechanism other than Title II to regulate the internet and all the harm that comes with that and unintended consequence, then I think that's a place we should land.

It seems like you're willing to negotiate with Democrats.
Thune: If we ever really got down to the substance, we could come up with something. It probably wouldn't satisfy the folks on our right or folks on their left, but it would attract the broad middle. It's just hard to get there from where we are.

Even though Sen. Schatz and Sen. Bill Nelson [Democrat of Florida] and others have expressed a willingness to sit down and work on legislation, I don't think they're going to have the freedom to do that as long as this shiny object of the CRA is out there. I doubt their leadership is going to allow them to enter into a negotiation on net neutrality rules as long as what they think is this great political issue in the CRA, which can get them everything they want by having the FCC back in the business of regulating the internet, exists.

But it's very hard for Democrats with the pressures they are under to go there. We will see. I hope that they come to the table. I've been willing, able and ready for a long time to do this.  

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