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Republican legislation to 'fix' Net neutrality may not be dead

Two Democrats offer a glimmer of hope to Senate Republicans looking to revive a bill that would put the FCC's rules preserving an open Internet into law, but with key differences. But there are major sticking points.

Republicans may be set to revive legislation that would replace the Federal Communications Commission's controversial rules governing the open Internet.

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Sen. John Thune (R-S.D.) needs Democrats to join his efforts to craft legislation to protect Net neutrality without using old utility-like regulation as the foundation. Screenshot by Marguerite Reardon/CNET

At a Senate Commerce Committee hearing Wednesday key Democrats signaled they might be willing to work with Republicans to craft legislation to ensure all traffic that travels over the Internet is treated equally, a concept known as Net neutrality. But huge hurdles remain.

"I remain open to true bipartisan congressional action, provided that such action fully protects consumers, does not undercut the FCC's role, and leaves the agency with flexible, forward-looking authority to respond to changes in the dynamic broadband marketplace," Sen. Bill Nelson (D-Fla.), the top Democrat on the committee, said in the hearing.

The comments give hope to the possibility that Congress can supersede the FCC with the bill. The proposed legislation, drafted by committee Chairman Sen. John Thune (R-S.D.), preserves the FCC's three key rules preventing blocking, any traffic slowdowns or paid prioritization (known colloquially as fast lanes), but does so without using utility-style regulation originally meant for the old monopolistic telephone network. That would alleviate the concerns of Republicans and the broadband providers.

Thune believes this approach will protect the openness of the Internet without requiring the FCC to use Depression-era regulations and reclassify broadband as a utility service. Thune and other Republicans are seeking to get around the FCC's order because they argue the legal basis for the new regulation could lead to government rate regulation, new taxes for consumers and more regulatory uncertainty for companies looking to invest in broadband networks.

It's the issue of reclassifying broadband that has bitterly divided Democrats and Republicans on the FCC and in Congress. Support from Democrats on a Net neutrality bill is necessary, because without it the Republicans don't have enough votes to pass it.

Nelson acknowledged that Net neutrality had become a divisive and partisan issue, and he admitted that the threat of litigation from broadband service providers such as AT&T and Verizon brings uncertainty to the market that could only be addressed through legislative action.

"For me, the key question we must ask now is how to take what the FCC has done and provide the certainty that only legislation can provide," he said.

Sen. Brian Schatz (D-Hawaii) said legislation was "worth discussion," but he said he isn't hopeful that that the two parties could come together to agree on anything.

The FCC's Net neutrality rules, which were passed in a politically divided 3-2 vote last month, reclassify broadband networks as so-called Title II telecommunications networks, which treats them like utilities. Republicans and Internet service providers, like AT&T, Verizon, and Comcast, say applying regulation made for the old telephone network will stifle innovation and expand the government's authority to impose new taxes and set rates on commercial broadband services.

But many Democrats, including President Barack Obama, say that the new classification for broadband is necessary to ensure the rules can stand up to future court challenges. The FCC has lost two previous lawsuits in which rules for protecting an open Internet were challenged that did not include broadband reclassification.

Thune has been seeking Democratic support on legislation he began drafting in January. Thune temporarily tabled the draft legislation last month ahead of the FCC's vote on the new Net neutrality rules because he was unable to win support from Democrats. At Wednesday's hearing, he admitted that his draft legislation was "not perfect." He said he was willing to work "in good faith" to come to a compromise.

"I believe that we are better served if we can provide clearer rules for the road," Thune said. He told the five FCC commissioners testifying before the committee that he hoped they would work with lawmakers to address "uncertainty" surrounding the FCC's rules instead of working against congressional efforts.

FCC Chairman Tom Wheeler, who vigorously defended his agency's rules, said he was more than happy to oblige.

"We will provide whatever expertise we can," he said. "We report. And you decide what to do with it."

While some Democrats may be willing to make Net neutrality rules law, Thune is not likely to find support among the senators in the group of 64 lawmakers on Capitol Hill who filed statements with the FCC in support of Title II reclassification.

Senator Al Franken (D-Minn.), who is among this group, said i n an interview with CNET following the FCC's vote last month that he didn't think legislation was necessary. Sen. Ed Markey (D-Mass.) echoed those sentiments during the hearing Wednesday.

"The FCC got it right," he said in reference to the Title II reclassification. "I think it would be ill-advised for Congress to move in and try to be the agency of expertise."