Future Tense

Democrats Have the House. Could Net Neutrality Be Saved This Time?

Federal Communications Commission Chairman Ajit Pai speaks to members of the media after a commission meeting December 14, 2017 in Washington, DC. FCC has voted to repeal its net neutrality rules at the meeting.  (Photo by Alex Wong/Getty Images)
Federal Communications Commission Chairman Ajit Pai. Alex Wong/Getty Images

The Obama-era net neutrality rules that the Federal Communications Commission gutted in 2017 have one thing in common with a zombie: They’re always crawling back from the dead. On Wednesday, Democrats in the House and the Senate released new bills aimed at restoring restrictions that would prevent internet service providers, like Comcast and Verizon, from slowing down or blocking access to certain websites—or charging websites a fee to reach users at faster speeds. Thanks to the current FCC, internet providers are now allowed to do whatever they want when it comes to how you connect to parts of the web, as long as they write in their terms of service that they reserve the right to do so.

The bills, both titled the Save the Internet Act, seek to undo the deregulatory actions of the Ajit Pai–led FCC, If passed, they’d return the law to what it was before Trump was inaugurated, “as in effect January 19, 2017,” according to the legislation. Beyond prohibiting internet providers from blocking and throttling internet connections, the new bills also seek to restore how the internet is legally classified. In 2015, the Obama-era FCC updated the law to classify the internet as an essential utility like phone service, which allowed the agency to pass public-interest rules to help ensure that providers don’t discriminate about how they provide access to subscribers. But under Trump, the FCC reclassified the internet as an entertainment service like cable television, which legally disempowers the FCC from passing regulation that would protect consumers from the whims of their internet providers.

The proposed legislation comes as an appeals court in D.C.  is currently deciding whether the Pai-led repeal of net neutrality was done to the letter of the law, since it occurred despite a scandal-strewn public comment process and just two years after the Obama-era rules went into effect. That case could also send the FCC back to the drawing board—or not. Whatever the outcome of the case, the issue may well remain in play for years, with each FCC undoing and redoing the rules for all eternity—unless Congress settles the law.

But that would require both chambers of Congress to, well, pass legislation that President Trump would sign. With a Republican-led Senate, that’s still a long shot. Sen. Roger Wicker of Mississippi, who chairs the Senate Commerce Committee that would consider such a bill, has long voiced his opposition to net-neutrality rules.* He accused Democrats of voicing “a degree of hysteria last year that didn’t make sense and that has not turned out to be accurate” on net neutrality. Sen. Marsha Blackburn, another Republican on the committee, introduced industry-friendly “net neutrality” legislation when she was a member of the House of Representatives last year. That bill would have prohibited internet providers from blocking access to websites, but still would have allowed the companies to charge to reach users. There’s certainly a risk that any compromise with the new legislation would codify something like this into law, where internet providers aren’t allowed to outright censor websites but could decide to slow down connections to websites unless they pay up. The danger is that when a website doesn’t load right away, people tend to navigate away, and those who can afford to pay for fast-lane speeds will have an even bigger advantage.

Last year, lawmakers attempted to undo the FCC’s net neutrality repeal by passing what’s called a Congressional Review Act resolution, which allows Congress to overturn regulatory actions. The resolution narrowly passed the Republican-led Senate, thanks to three Republicans who pushed the bill over the edge, but failed to get the votes it needed in the House.

This year, with the House controlled by Democrats, advocates are hopeful that the new bills will gain traction. The telecom industry will lobby loudly and expensively to fight it. Open-internet activists will mobilize. And if the effort to revive net neutrality fails—well, there’s always the next administration for another attempt at resurrection.

Correction, March 6, 2019: This article originally misidentified Sen. Wicker’s state.