Net Neutrality: The Fights for Its Return

Tai Henrichs, Writer|January 25, 2018

Introduction

In the previous article, the historical background and importance of net neutrality were detailed.  But, of course, the FCC (Federal Communications Commission) had already repealed Net Neutrality.  That does not mean plenty of people from activists, to state legislatures, to Congress are not fighting for its return.  Read on to learn more about these efforts to keep the internet an open playing field.

State Laws

Now, one of the original goals of regulating the internet at the federal level, just as in many other areas, is to ensure that companies do not have to wander through a maze of varying regulations on a state by state basis.  Of course, this also means that the success of any state bill might spillover to ISPs (Internet Service Providers) generally following net neutrality because that is easier than complying in some places where it is required and then choosing not to in other cases, similar to how car manufacturers all follow California emissions standards because they do not want the expense of designing different cars for California than everyone else.  Currently, six states are all considering the passage of laws to bring back net neutrality though their own laws, and more are considering the possibility.  One challenge to this is that when the FCC passed its net neutrality bill, it also decided that it would preemptively bar states from creating their own net neutrality laws.  One solution to this has been for states to encourage rather than mandate compliance with net neutrality.  New York’s law requires any ISPs that contract with any part of the state government to support net neutrality as a requirement for getting the state’s business.  Another option for states would be controlling access to publicly owned utility poles with net neutrality compliance a requirement for using them to reach their customers; the alternative for ISPs would be to buy land and build their own utility poles.  Another possibility is that if the FCC attempts to use its preemption to prevent state net neutrality laws from staying around is that it would simply lose in court, rendering its preemption moot, which happened in 2016 when the FCC tried to prevent state laws from allowing city owned internet companies (municipal broadband) from competing with private ISPs.  So should you be optimistic?  Well, when Congress eliminated privacy rules regulating ISPs last year, Minnesota was one of the first states to propose legislation to create similar protections on a local level, though they ultimately failed to pass.  The Minnesota attorney general is also one of the participants in a multi-state lawsuits against the FCC for its net neutrality repeal.

Lawsuits

In addition to state legislation, some are planning to take the issue of net neutrality to court.  The attorney generals of two-one states along with Washington D.C. have decided to sue the Federal Communications Commission; unlike state level laws, this effort is highly partisan with all the participating attorney generals being Democrats.  They have filed a protective petition for review, which is a request for an organization decision, such as the FCC’s to repeal Net Neutrality, to be reviewed in court.  Others have joined in the move to bring back net neutrality: Public Knowledge, New America’s Open Technology Institute, Mozilla (maker of the browser Firefox).  The Internet Association, which represents companies such as Google and Facebook, has stated plans for joining lawsuits against he FCC on the issue though they do not plan on filing a separate suit.  Some arguments rely on trying to demonstrate that the purpose of the repeal was purely partisan with no intention of basing the decision in factual evidence, which is required for rulemaking by executive organizations such as the FCC.  Another argument is that the FCC’s public comment period required for all such policy decisions was broken by floods of automated submissions and at a couple points, an inability to submit comments, which means it violates procedural requirements for accessibility; comments must be allowed to be made although ignoring the content of these is allowed.  Both of these would be temporary solutions though because the FCC could reinstate the repeal in a way that avoided violating any procedural rules and using additional evidential backing for its repeal, but a successful suit would buy time.           

Federal Law

The final option for bring the return of net neutrality rules would be through Congressional legislation.  Up to 60 days after a rule, if promulgated by an agency such as the FCC, Congress can pass a bill reversing the decision under the Congressional Review act of 1996.  This would require a simple majority (51 members) to vote in favor of such a bill.  Although net neutrality is supported by the majority of Democrats and Republicans when polls are conducted, most Republicans in both the House and Senate oppose net neutrality.  As of now, passing the bill in the Senate would not be too difficult; Republican Senator Susan Collins of Maine has stated support, and with forty-nine Democrats currently in the Senate, that means only one additional Senator would need convincing to avoid the tie breaker vote.  That does leave the House of Representatives, where Democrats are outnumbered by forty.  And, the final obstacle would be the threat of a veto from the Republic president Donald Trump.  Even with midterm elections for both House and Senate seats coming this November – which could prompt support for Net Neutrality as a campaign issue – the threat of a veto would remain, and unless an ISP lacks foresight, no ISP will make dramatic changes to their offerings until after this Congressional election completes so that there is a smaller change of net neutrality being repealed in the short term.   

 

Sources

  1. Jon Brodkin, 1-16-2018, “21 states sue FCC to restore net neutrality rules,” Ars Technica, https://arstechnica.com/tech-policy/2018/01/21-states-sue-fcc-to-restore-net-neutrality-rules/\
  2. David Montgomery, 5-1-2017, “Internet privacy provisions removed from Minnesota bill,” Twin Cities, https://www.twincities.com/2017/05/01/internet-privacy-provisions-removed-from-minnesota-bill/
  3. Jon Brodkin, 3-31-2017, “ISP privacy rules could be resurrected by states, starting in Minnesota,” Ars Technica, https://arstechnica.com/tech-policy/2017/03/isp-privacy-rules-could-be-resurrected-by-states-starting-in-minnesota/
  4. Jessie Van, 12-14-2017, “Two Minnesota legislators say they will push to protect net neutrality in wake of FCC decision,” Star Tribune, http://www.startribune.com/two-minnesota-legislators-say-they-will-push-to-protect-net-neutrality-in-wake-of-fcc-decision/465283593/
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  12. Klint Finley, 3-21-2012, “TECH GIANTS TO JOIN LEGAL BATTLE OVER NET NEUTRALITY,” Wired, https://www.wired.com/story/tech-giants-to-join-legal-battle-over-net-neutrality/
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