The Time to Get the Net Neutrality Rules Back is Now
Last December 14th, the Trump FCC repealed the 2015 network neutrality rules prohibiting broadband Internet Service Providers (ISPs) from favoring or discriminating against Internet traffic. In doing so, the Federal Communications Commission (FCC) expressly abdicated its role protecting consumers and competition in the broadband market, leaving powerful companies like AT&T and Comcast with little government oversight. The repeal of the rules and the FCC’s oversight will become effective on June 11.
The blowback against this decision has been fierce and has taken place in three realms — the courts, the states and Congress. All are important, but the best way to restore net neutrality is in front of Congress right now, through a pending bill that would quickly overturn the December 14th decision, reinstate the 2015 rules and prohibit the FCC from enacting anything substantially similar in the future.
Blowback in the Courts and the States
The lawsuit against the FCC’s net neutrality repeal is in its early stages. 16 lawsuits were filed and consolidated into one proceeding that will be heard in a federal court in Washington, DC. In addition, 34 states have stepped in to try and fill the gaping hole that the FCC left by repealing the rules. Most of those states have introduced bills that would some way or other reinstate the 2015 rules, while a handful of governors have issued Executive Orders that require any ISP doing business with the state abide by the 2015 rules. A group of cities are now looking to do the same.
The lawsuit and state and local initiatives are welcome responses to an outrageous decision. But the lawsuits will take many years to resolve. And the ISPs are also certain to challenge both the state laws and Executive Orders in court, because the FCC’s net neutrality repeal order purports to preempt any action that would restore net neutrality.
The Best Way to Restore Net Neutrality is Coming Up for a Vote in the Senate Tomorrow
The best and fastest vehicle for bringing back the vital protections of net neutrality resides in both houses of Congress. It’s called a “Joint Resolution of Disapproval” which is allowed under a law called the Congressional Review Act (CRA). The CRA allows Congress to overturn an agency decision soon after it is adopted with a simple majority of members in attendance. This Congress used the CRA last April to repeal FCC rules that would have required ISPs to protect the privacy of their customers. Now the CRA is being used by net neutrality supporters to overturn the FCC’s December 14th order and reinstate the 2015 rules.
On May 9th, 49 Senators signed a “discharge petition,” which forces a floor vote on the Joint Resolution. That vote is scheduled for tomorrow, Wednesday May 16th. Currently there are 50 confirmed votes for the Joint Resolution, meaning that one more vote would ensure its passage.
Should the Joint Resolution pass the Senate, the House must pass it by the time Congress adjourns at the end of the year. The House Joint Resolution currently has 161 co-sponsors, with a total of 218 votes needed for passage. But once it passes the Senate, the pressure will mount for House members to co-sponsor the Joint Resolution.
“It Ain’t Over ’Til it’s Over”
Not surprisingly, ISPs and their allies who oppose the Joint Resolution will tell anyone who will listen that it won’t pass, certainly not in the House, and that in any event, President Trump will veto it. They are shocked that the Senate rallied 50 supporters in just one month after the December 14th vote and industry lobbyists are furiously working both Houses of Congress behind the scenes to stop the Joint Resolution from passing.
But if there is one area where Yogi Berra’s wisdom that “It Ain’t Over ’Til it’s Over” has been proven time and again, it’s technology policy. In 2014, the dangerous Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA) — two bills that would have forced online companies and ISPs to become copyright police — were absolutely, positively going to pass Congress. Until a huge wave of public and corporate opposition killed them both quickly. In 2015, there was no way former FCC Chair Tom Wheeler was going to ground his new net neutrality rules in the strongest legal authority — Title II of the Communications Act. Until a huge wave of public pressure caused him to rethink his position and do just that.
Net Neutrality supporters are optimistic that the Senate has the votes to pass the Joint Resolution. Once that happens, it will provide momentum for the House to do the same. As for President Trump — can anyone predict what he will do on any issue at any time? Don’t listen to the naysayers — the Joint Resolution has a real chance of passing.
Beware of Trojan Horses on Capitol Hill
Foes of the 2015 rules and the Joint Resolution argue that the best path to strong net neutrality is through other legislation — and already so-called “net neutrality” bills have been introduced in the House (by Rep. Marsha Blackburn of Tennessee) and the Senate (by Senator John Kennedy of Louisiana).
Don’t be fooled — these are not net neutrality bills. In fact, they are bills that will kill net neutrality. These identical bills do not ban fast lanes, they do not restore FCC oversight over broadband and they preempt the states from protecting consumers.
A real net neutrality bill must, among other things, codify the 2015 rules, restore the FCC’s legal authority to oversee the broadband market and allow the states to have a role in protecting consumers and competition. I’d guess that such a bill would not last 5 minutes in this Congress.
The Final Word
The Senate vote to restore the FCC’s 2015 net neutrality rules will take place tomorrow. If you are one of the millions of Americans who believes that net neutrality protections are vital to a free and open Internet, then go to battleforthenet.com or Public Knowledge to call your Senators and ask them to support the Joint Resolution of Disapproval of the FCC’s net neutrality repeal order.
