A recent call by a group of Democrats in the U.S. House of Representatives asking leadership to reconsider the current legislative approach on net neutrality is unlikely to ease the current partisan gridlock on the issue, according to policy experts.
But there could come a tipping point — either in Congress or in response to the courts — where that dynamic changes.
The latest debate is centered on the viability of a House bill known as the Save the Internet Act, which would restore the U.S. Federal Communications Commission's Open Internet Order from 2015. The 2015 order classified broadband as a Title II telecommunications service and gave the FCC more authority to regulate broadband service providers. It was considered a signature policy effort under the then-Democratic-led FCC. A Republican-led agency voted to undo the change two years later, calling the earlier order regulatory overreach.
The House passed the new bill in April of this year with the support of Democrats and a single Republican. Senate Majority Leader Mitch McConnell, R-Ky., reportedly called the legislation "dead on arrival" in the Senate chamber. In response to the deadlock, a group of 47 House Democrats wrote a letter to House Democratic leadership on May 22 that called for the establishment of a bipartisan House working group that could work to find consensus on the issue.
Democratic leaders have pushed for legislation that resembles
Phillip Berenbroick, senior policy counsel at public interest group Public Knowledge, said it is unlikely that House leadership would consider a new legislative approach so quickly after passing the first, especially given the House Energy and Commerce Committee's prioritization of the Save the Internet Act. The committee has primary jurisdiction over internet regulations in the House.
"[It] was the first bill that the Energy and Commerce Committee marked up this Congress," Berenbroick said. "That is a statement that the bill is the priority of leadership on the committee."
The bill also has the support of Speaker of the House Nancy Pelosi, D-Calif., and Senate Minority Leader Chuck Schumer, D-N.Y.
A spokesman for the Democrats on the House Energy and Commerce Committee said in a May 29 statement, "There is already a working group established — it's called the Energy and Commerce Committee."
On the Senate side, Sen. Kyrsten Sinema, D-Ariz., has said she will lead a bipartisan effort to craft a net neutrality proposal with Sen. Roger Wicker, R-Miss., who is chairman of the Senate Commerce, Science and Transportation Committee. The two have yet to release a proposal.
Doug Brake, director of broadband and spectrum policy at the nonpartisan public policy think tank Information Technology and Innovation Foundation, said if a bipartisan working group were to form in the House and gain momentum, it could shift the political conversation around the issue — though it would require robust bipartisan conversations to draft legislation with wider support.
"At a certain point, the politics shift, where this is the most obvious way forward to actually pass legislation that sets in stone permanent, strong, net neutrality rules," Brake said. "Once that opportunity is on the table, I think it gets harder and harder to say no to."
The courts could also shift the conversation on net neutrality policy, noted Public Knowledge's Berenbroick. The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments against the FCC's repeal of its net neutrality rules in February. A decision is expected in the coming months.
"You could see this decision get tossed back to the FCC," Berenbroick said. "If that happens, it's likely the 2015 order snaps back into place."
Berenbroick says in that scenario, the combination of an upcoming election coupled with the FCC not wanting to be distracted from its work on 5G and broadband mapping issues could lead the agency to defer to Congress.
Under the right circumstances, "the FCC could easily say 'You know what? Congress is looking at legislation on this, we will wait for Congress to do something,'" he said.