Every week, a motley crew of tech wonks and legal experts meet in Washington to discuss the problem they've been grappling with for almost a year now: how to save the Federal Communications Commission's net neutrality rules.
There are policy experts from tech giants such as Facebook and Twitter, who at one point or another have weighed in on the net neutrality debate but whose fortunes in Washington have worsened as the political winds have shifted against them over the past year. And there are consumer groups, such as Free Press and Public Knowledge, who have waged a grass-roots campaign to keep the FCC from letting Internet providers block or slow websites. Participants of this group spoke to The Post on the condition of anonymity to shed light on the closed-door gathering.
This massive yet inconspicuous alliance draws together the combined firepower of those calling for tougher regulations for Internet service providers (ISPs) at a time of increasing consolidation in the industry. But with the debate on net neutrality shifting toward Congress after the FCC decided last year to repeal its net neutrality rules, the group's members are divided on how best to channel their energies on Capitol Hill — particularly in a high-stakes election year. The big-tent group now faces a test of unity as it prepares for a looming congressional showdown that could happen this spring and summer on the future of the Internet.
Formed last spring as the FCC announced it was beginning a push to unwind the net neutrality rules, the group came together at first to coordinate opposition to the government's plan. It attracted people with similar interests who in some cases had worked together before. But it soon became clear that the breadth of interest was far wider than many had anticipated; what was envisioned as a meeting once every couple of weeks quickly turned into a weekly assembly with dozens of participants crowded into a conference room at a prominent Washington think tank. More joined virtually, by telephone.
“The room has gotten bigger and bigger over time,” said one person involved in the discussions. “It’s like 70 people, either in the room or on the phone.”
The group has continued meeting despite the FCC's December vote to undo the regulations for Internet providers. In fact, with opportunities to challenge the FCC in court and in Congress, the diverse members of the coalition are now in an effort to be more coordinated than ever. But what's arisen is a debate over legislative strategy.
Within the coalition are two factions: those pushing to play hardball on Capitol Hill by threatening to force uncooperative lawmakers from office in November, and those who'd rather see the debate settled at the congressional negotiating table sooner rather than later, even if it means making policy concessions to companies such as Verizon and Comcast. Leading the first camp are the advocacy organizations who decry the FCC's vote for repeal as an attack on consumer protections. Driving the other camp are the tech companies and industry groups for whom the partisan deadlock on net neutrality risks stalling business plans and distracts from other policy debates they'd prefer to be having.
“Just recently, we’ve had some heated discussion about whether we should be playing the legislative game,” the person said. “The public-interest folks in particular are afraid that you’d be lucky to get half a loaf with this Congress, and that that’s not good enough.”
The hardball faction is building support for a Congressional Review Act (CRA) resolution that could overrule the FCC entirely if it is passed within a 60-legislative-day time frame that kicked off last week. The measure, led by Senate Democrats such as Edward J. Markey (Mass.), has 50 of the 51 required votes to pass the Senate. But the legislation faces longer odds in the House, and President Trump is expected to veto it.
Despite that, proponents say the resolution will force lawmakers to take a position on net neutrality ahead of the November midterm elections, when voters could punish elected officials for siding with the FCC's Republican chairman, Ajit Pai. Surveys last year showed that more than 80 percent of Americans, and 75 percent of Republicans, preferred keeping the FCC rules on the books rather than repealing them.
“The engagement on this issue is absolutely incredible,” Angie Kronenberg, INCOMPAS's general counsel, said at an event this month on Capitol Hill. “The public is using the CRA to send a message to Congress that this issue is really important to them.” On Tuesday, grass-roots activists held public rallies online and at some lawmakers' offices, such as that of Sen. Jerry Moran (R-Kan.).
In an election year that some analysts say already favors Democrats because of voter enthusiasm against Trump, net neutrality could help drive people to the ballot box and turn more red seats blue. That, in turn, could pave the way for legislation that's friendlier to consumers and tech companies than if the coalition were to start bargaining in earnest now, according to hardball proponents.
But Democrats have a lot of work to do before gaining control of both houses, particularly in the Senate, where the party must defend 26 of its own seats. By comparison, eight Republican seats are up for grabs.
Some in the net neutrality coalition have argued for opening another legislative track, one aimed at crafting a bill that satisfies Internet providers and consumer advocates alike.
One proposal making the rounds is a framework drafted by Rep. Mike Coffman (R-Colo.), who made headlines in December for calling on the FCC to delay its repeal. Coffman's bill would reinstate key provisions of the FCC's 2015 net neutrality rules, including a ban on blocking, throttling and paid prioritization — the business practice in which ISPs charge an extra fee to speed delivery of a website's content to consumers.
Given @AjitPaiFCC and the @FCC lack of response to my letter, I will be submitting legislation pertaining to #netneutrality. This conversation belongs in #Congress. As I draft this bill email me your suggestions to: firstname.lastname@example.org pic.twitter.com/DMRPQvA4p1— Mike Coffman (@RepMikeCoffman) December 14, 2017
In exchange, proponents of a legislative compromise say they're willing to give up regulating ISPs under Title II of the Communications Act, part of the FCC's charter that gives the agency broad authority to oversee networks, write further rules and even set prices. The Title II issue was what prompted ISPs to go to court in 2015 to challenge the regulations, amid concerns that a future FCC could use the law to impose price caps on Internet service.
Those in the coalition who favor early negotiations say that Congress could then add a new section to the Communications Act that clarifies the FCC's authority over Internet providers, laying out what its mission and powers should be for the 21st century.
“That's a framework from which we think we can negotiate,” said another person involved in the coalition.
Under this approach, the person added, the CRA is not a means to an electoral sweep or a restoration of the old status quo. It's a stick meant to drive lawmakers — especially vulnerable ones — toward the carrot of compromise.
“I think the CRA will be the forcing mechanism,” the person said. “It’ll make those in the industry and groups on both sides of the issue — make the Republican leadership and the Democrat leadership [come together]. It’ll bring everything to a head as to whether you can do legislation this year or not.”
But the split among coalition members over how to move forward threatens to put the two factions at cross-purposes, with some of the key industry groups pushing the olive branch and the public-interest groups calling to keep up the pressure. The result could be a mixed overall message that fails to capitalize on the group's core strength: its diverse membership representing a broad cross-section of the economy.
As more companies have come to depend on Internet access to reach consumers and grow their business, some policy experts say net neutrality is much more than a battle about specific consumer protections. It's always been about the role that society envisions for Internet providers, and who — or what — is empowered to keep those companies accountable, according to Gigi Sohn, who helped craft the 2015 net neutrality rules as an adviser to then-FCC Chairman Tom Wheeler.
“Net neutrality has to have several things,” she said. “Reinstate the rules and give the FCC its authority to oversee the broadband market. Not just the rules — it’s the authority. That’s what the fight is about.”