The FCC's net-neutrality protections are about to disappear - but backers are moving on multiple fronts to put them back in place
- The Federal Communications Commission's new rules that do away with its net-neutrality protections officially take effect in April.
- Net neutrality supporters are pushing on multiple fronts to block the FCC's action or reinstate the protections it previously guaranteed.
- It's unlikely they'll stop the FCC's new anti-net neutrality rules from taking effect next month, but longer term, they have a shot at bringing back protections the rules offered.
The Federal Communications Commission's new rules eliminating its net-neutrality protections are set to take effect next month, but supporters of an open internet aren't giving up hope they can be restored - possibly even right away.
State officials, public-interest groups, and internet activists have launched lawsuits and public campaigns to try to reinstate net-neutrality protections. There's little chance they'll succeed before the end of April, when the FCC's anti-net neutrality regulations go into force, legal experts say. But net neutrality proponents have a shot at bringing back the protections in the future either via the courts or Congress, according to the experts.
Net neutrality is the principle that all internet traffic should be treated equally, that internet service providers such as AT&T and Comcast should be barred from blocking, slowing down, or speeding up access to particular sites and services. The FCC rules guaranteeing it were designed to protect internet users' ability to access the online services of their choice and to prevent broadband providers from giving an unfair advantage to their own sites and services or to those of their paid partners.
The FCC has had some form of net-neutrality protections in place essentially since 2005 and enacted its most recent rules in 2015 under the Obama administration. Despite widespread, bipartisan support for those protections, the Republican-dominated FCC voted along party lines in December to eliminate them. Since then, supporters of those rules have been pushing back against the FCC's move on multiple fronts.
Here's how activists are attempting to reinstate net neutrality:
Congressional Review Act
Net neutrality supporters are focusing their efforts in part on the Congressional Review Act, a once-obscure law that allows Congress to overturn regulations enacted by federal agencies within 60 days of when they take effect.
To block such regulations, both houses of Congress would need to pass a CRA resolution, and the president would have to sign it. But unlike most legislation, which requires a supermajority in the Senate to even be considered, the resolutions only need a majority vote in both houses to pass.
In the Senate, the CRA resolution that would overturn the FCC's anti-net neutrality rules is right at that threshold. It has has 50 cosponsors - just one shy of a majority.
This week, net-neutrality supporters organized an online protest using the hashtag #OneMoreVote to try to pressure at least one more senator to back the resolution. It's likely the movement will get that vote, said Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation, which has supported net neutrality.
With midterm elections coming up, Republicans might not want to be seen to be opposing net neutrality, he said. A recent University of Maryland poll recently found that not only does the vast majority of Americans in general support net neutrality, three out of four Republican voters do.
An FCC spokesperson declined to comment.
Broadband for America, an organization that includes Comcast, AT&T, and Charter Communications, attacked net-neutrality activists for trying nullify the FCC's new rules via the CRA.
Such a move would be a "rushed, short-circuited approval process, with no public comment or input whatsoever," Broadband for America said in a statement.
Prior to the FCC passing its new anti-net neutrality rules, millions of people submitted comments, the vast majority of which were in favor of keeping the open internet protections in place. The agency pushed through its repeal of net neutrality protections anyway.
Regardless, the CRA process remains a long shot. Even if net-neutrality backers can convince Congress to pass the CRA, it's doubtful President Trump would sign it, give that the anti-net neutrality rules were put in place at the direction of Ajit Pai, the FCC chairman Trump nominated.
Lawsuits
But net-neutrality backers are pursuing another avenue to reinstate the FCC's open internet rules - the courts.
In the wake of the FCC's December vote, supporters of net neutrality protections have filed a flurry of lawsuits to undo the agency's repeal of them. Mozilla, the company behind the Firefox browser; streaming video provider Vimeo; and a collection of public interest groups filed suit in December. Last week, the attorneys general of 23 states filed a separate suit.
The suit filed by the group of attorneys general revolves around the proper way to classify broadband service. The FCC has gone back and forth on the issue over the last 20 years. But in its 2015 rules, the agency redesignated broadband as a telecommunications service rather than an information service. That designation essentially gave the agency the authority the courts said it needed to undergird its net-neutrality protections.
But the move was vehemently opposed by telecommunications providers and many politicians, particularly antiregulatory Republicans. They thought the designation brought with it too many burdensome regulations on broadband companies and would depress their investment in building out their networks.
The issue of how to classify broadband will be something the courts "will have to struggle with," said Jim Speta, a law professor at Northwestern University.
"That question really gets to the heart of the disagreement in the FCC," he said.
The lawsuits will also contend with the question of whether individual states have the authority to pass laws that would offer net-neutrality protections within their borders, something several states have moved to do following the FCC's repeal of its own protections. It's not entirely clear how the courts will come down on the controversy.
While the courts usually side with the federal government in conflicts with the states, legal experts are split on whether in this instance the states have a legitimate case to make, Speta said.
"The states are going to assert that they have the right to protect their own consumers," said Falcon, the EFF lawyer.
The lawsuits likely won't be decided for more than a year, and broadband providers will likely be able to operate in a net-neutrality free world until then, legal experts said.
"We'll get to see how ISPs operate in a virtually unregulated environment," Falcon said.
An FCC representative said the agency wasn't concerned about the legal challenges to its anti-net neutrality rules.
"We have every reason to believe that the courts will uphold the FCC's decision," the representative said.
State laws and orders
Supporters of net neutrality are also taking action inside particular states. Since the FCC's December vote, the governors of New York, New Jersey, and Montana have signed executive orders mandating ISPs with state contracts abide by net-neutrality rules. But those orders offer limited protections, because they don't apply to broadband providers that don't have state contracts.
As the lawsuits against the FCC make their way through the courts, states with their own net-neutrality laws will be able to guarantee their citizens those protections, at least until a court strikes down those laws.
"Washington and other states that are considering this are being proactive," said Marc Martin, an attorney with law firm Perkins Coie's communications practice.
But such state-level actions aren't a great way to offer net-neutrality protections, legal experts said.
"As a matter of policy, it's a bad idea to have the internet governed by lots of little state regulations," Speta said.
A federal net-neutrality law
The best way to guarantee net neutrality would be for Congress to pass a law codifying such protections, legal experts said. That way the protections couldn't be put in place or taken away at the whim of whichever party had a majority in the FCC.
Even if courts rule that states have the right to enforce net-neutrality protections within their borders, legal experts said it's sound policy to have a federal law in place.
"Ultimately, the solution has to come at the federal level," Falcon said.
What happens now?
Given the timing of the lawsuits and the uncertainty around the CRA process, the FCC rule overturning its net neutrality regulations will most likely take effect in April. The big broadband providers say that won't mater, because they actually support net neutrality, even if they didn't like the old rules. They've generally promised they won't slow down traffic, block websites, or create fast lanes and slow lanes online.
But several have said they want the freedom to give preference to certain kinds of internet traffic and some have already begun giving a leg up to their own sites and services in other ways. Regardless, thanks to the FCC's new rules, there's no way to ensure that they really will keep net-neutrality protections in place.
"That's all well and good to say that," Martin said. "But you can't enforce it - it's not a matter of law."