Congress Is About to Blow Its Chance to Save Net Neutrality

Ajit Pai
FCC Chairman Ajit Pai speaks, during a news conference to unveil the Cox Connect2Compete program, at the National Press Club on Oct. 1 in Washington.
Mark Wilson/Getty Images

Congress has one last chance to undo the Federal Communication Commission’s 2017 repeal of net neutrality protections—but it only has until Dec. 21 to do it. The open-internet rules officially went off the books in June, but Democrats in Congress have been organizing since the end of last year to pass a Congressional Review Act resolution to undo the FCC’s repeal. In May, three Republican votes pushed the Senate over the edge to narrowly pass a bill to restore net neutrality and rescind rules passed under current FCC Chairman Ajit Pai. After that, the onus went to the House, where 218 signatures are needed for a vote to proceed. Right now, however, there are 180 representatives signed on, mostly Democrats. It’s a very, very long shot, but if advocates fighting to restore net neutrality are able to gin up the votes in the next week, there’s a chance to block Pai’s vision of an internet in which companies like Comcast and AT&T are legally allowed to shut down or slow down access to whole parts of the web.

Without net neutrality protections, there’s nothing stopping internet providers from throttling or even blocking how we’re able to reach websites and access information online. Right now, if Comcast decides it wants to allow large national news outlets, like the New York Times or Fox News, to pay to load faster than smaller news sites that can’t afford the fast-lane fees, there’s nothing stopping Comcast from doing so. So far, this hasn’t happened: Internet providers appear to be choosing restraint over dramatic changes to their practices. But if they do start behaving in “non-neutral” ways, it might not be obvious at first. The website of your favorite local restaurant or venue might start to load slower; you might find yourself navigating away from those sites and relying more and more on big platforms that can afford to pay for faster access, like Yelp and Facebook. And before you know it, the internet may start to become a much more consolidated, less diverse place.

The deadline to force a floor vote for this session of Congress was Dec. 10, but since the congressional session has been extended to Dec. 21 over funding disputes, net neutrality supporters have a bit more time. For the gambit to work, at least 20 Republicans and every Democrat would have to get on board with the CRA resolution. (Republicans are certainly familiar with how CRAs work, because they’ve used the same process to reverse more than a dozen regulatory actions since Donald Trump won the election in 2016—but those were rules passed under President Obama.) If internet advocates are able to spur a quick and unexpected legislative turnaround, it wouldn’t be the first time. In 2012, outrage over two obscure intellectual property bills that would have drastically changed the way we’re able to share media online—the Stop Online Piracy Act and the Protect IP Act—became so boisterous that the number of Congress members who opposed the bills jumped from 31 to 101 after a single day of action. The legislation died. At the moment, the issue on the table is simply getting enough signatures for a vote on a Congressional Review Act to be possible—not the vote itself.

There are currently 16 Democrats who haven’t signed on to vote on the Congressional Review Act resolution, according to the watchdog group Fight for the Future, and they’ve taken thousands of dollars in campaign donations from internet providers like Comcast, Verizon, AT&T, or the National Cable Television Association, a trade group representing internet service providers. Receiving campaign contributions from an internet service provider in no way destines an elected official to oppose net neutrality. As Vice notes, the Democratic representative who introduced the CRA petition, Mike Doyle of Pennsylvania, has received donations from the National Cable Television Association. Still, choosing to abstain on an issue that the vast majority of your party supports— and that the vast majority of Americans who commented to the FCC on the issue supported—while receiving donations from the ISPs is not a good look.

The 23 million comments the FCC collected on last year’s net neutrality proceeding amounted to the most public participation on any issue in the history of the agency. And while millions of those comments certainly came from concerned Americans attempting to have their say in one of the most important decisions facing the future of the internet, many did not. The process that led to the vote to undo the Obama-era rules was probably the most corrupted public comment period in the agency’s history.

“As many as nine and a half million people had their identities stolen and used to file fake comments, which is a crime under both federal and state laws,” according to FCC Commissioner Jessica Rosenworcel, who released a statement dissenting to Pai’s decision not to comply with a Freedom of Information Act request from reporters earlier this month seeking to learn more about problems that arose during the net neutrality proceeding. “Nearly eight million comments were filed from e-mail domains associated with FakeMailGenerator.com. On top of this, roughly half a million comments were filed from Russian e-mail addresses. Something here is rotten—and it’s time for the FCC to come clean,” her statement read. Beyond the deluge of fraudulent and disqualifying comments, Pai told members of Congress earlier this year about a denial-of-service attack that he said had caused the FCC’s comment system to crash during the net neutrality discussions—but in August, the FCC’s inspector general released an investigation noting that didn’t happen. Making false statements to Congress is a serious offense, but the U.S. attorney general declined to prosecute anyone at the FCC. Congress now has its chance to blow the whistle.

The last standoff isn’t on Capitol Hill, though. Even if Congress is able to pass the resolution to undo the gutting of net neutrality regulations, the repeal would have to get a signoff from President Trump. All of which is why the most hopeful battlefields are in the courts. There are multiple lawsuits out currently challenging the FCC’s repeal, including from advocacy groups like Free Press and the National Hispanic Media Coalition as well as a cadre of 23 state attorneys general who have vowed to file lawsuits against the FCC to address the issues with the public-comment process. 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. 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 aboveboard.

Meanwhile, the internet still works. But unless something changes soon, either in the courts or in Congress, it might not work the same way for very much longer. Internet service providers stand to make a killing without net neutrality rules, since they can essentially operate a two-way toll, charging both subscribers for access to the internet and websites to reach subscribers at faster speeds. The internet was supposed to be a place where infinite flowers bloom and where there’s no telling what someone might create next. Under the current administration, that ideal keeps getting pushed further and further out of reach.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.