Thanks to the Federal Communications Commission, network neutrality protections are about to be dead. But how dead is still an open question.
On Wednesday, after Democrats forced a vote, the Senate narrowly passed a resolution that would restore the Obama-era net neutrality rules, which prohibited internet providers like Comcast, Verizon, and AT&T from blocking or throttling access to websites, making websites pay a fee to access users at faster speeds, or partitioning off parts of the internet from some users. In December, the FCC voted to rescind those rules, this despite millions of comments from the public, the vast majority of which were in favor of upholding the internet protections.
Every Senate Democrat, along with three Republicans, Sens. Susan Collins of Maine, John Kennedy of Louisiana, and Lisa Murkowski of Alaska, voted to pass a Congressional Review Act resolution, which is used to overturn or eliminate an agency’s action. This type of measure is something congressional Republicans are quite familiar with. Since Donald Trump won the 2016 election, Congress has worked to reverse more than a dozen regulatory actions—but those were rules passed under President Obama. To enact one of these resolutions, a simple majority is required in both the Senate and the House, followed by the president’s signature. Now that this resolution has cleared the Senate it heads to the House, where Republicans outnumber Democrats 236-193, meaning at least 20 Republicans would have to get on board if every Democrat voted in favor. It’s a longshot—but it’s not impossible.
Internet advocates have, after all, turned Congress around in the past on similar issues. In 2012, outrage over two intellectual property bills that would drastically change the way we’re able to share media online—the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA)—became so loud that the number of elected officials who opposed the bills jumped from 31 to 101 after a single day of action. The legislation died.
While a congressional reversal would be a stretch this time around, what’s more likely to happen is that the deciding skirmish in the effort to restore the protections will occur in the courts. Multiple groups—like the pro-net neutrality advocates Free Press, the National Hispanic Media Coalition, and a group of 22 state attorneys general—have vowed to file to lawsuits against the FCC over what they claim was a corrupt rulemaking process.
They may have a point—the process that led up to the repeal of net neutrality was pretty shady. Although the FCC collected more than 23 million comments—the most public participation on any issue in the history of the agency—many of those comments were faked, issued using stolen identities, or filed by bots, not people. Some were even filed using the names of dead people. Hundreds of thousands were filed using Russian email addresses, and those ones were mostly in favor of rescinding the internet rules. The FCC’s electronic public input system was even hit last year by a mysterious cyberattack, which is subject to an ongoing federal investigation. The FCC is legally required to engage in a fair process for soliciting comments from the public, which is supposed to be used to guide the agency’s nonelected commissioners to act in the interest of the pubic when making policy. And with so many serious blunders clouding the comment period, there’s a strong case to be made that the FCC’s decision to carry on with the repeal wasn’t above board.
Last week the FCC shared that the net neutrality repeal will officially be published on the federal register, putting the new rules into effect, on June 11. Once that happens, all internet providers have to do to start blocking websites or throttling the speed of some websites to be slower than others is to add a provision to their terms of service saying that they “reserve the right” to do whatever they want. That’s because the new rules only require internet providers to disclose their network management practices. While it’s unlikely that anything will change overnight on June 11, keep an eye out for new terms of service from your internet provider.
Between now and then, expect a flurry of campaigns from advocacy groups and internet companies to get members of House on board with the resolution to overturn the FCC’s decision to undo network neutrality protections. Sites like Reddit, Etsy, OKCupid, Pornhub, and others all recently participated in a campaign to urge senators to pass the resolution.
While it would be an impressive lift for House Democrats to garner enough votes needed to pass the resolution, the Senate’s efforts will certainly keep the issue in the public eye. And that’s important with the midterms right around the corner. We know millions care about net neutrality. It may be yet another issue they keep in mind in November when they head to the polls.