Who Can Clean Up the FCC’s Net Neutrality Mess?

Last week, the Federal Communications Commission took the long anticipated, widely disparaged step of doing away with net neutrality protections, over the objections of roughly 80 percent of Americans who support a level online playing field. Net neutrality is no more — unless, that is, the right people say that the FCC has gone too far.

There are three possible paths to the reinstatement of net neutrality protections that were stripped away through last week’s vote.

The courts

One path to challenge the FCC’s rollback lies in the courts. Numerous actors, including government officials and technology and free speech advocates, have pledged to challenge the legitimacy of the agency’s action. Challengers might focus on the sheer audacity of the FCC’s move and its disregard for the administrative process. Just two years ago, the agency adopted net neutrality principles based on extensive research and commentary. A federal court upheld the rule and the appellate court affirmed that decision. More Americans commented on the rule — and commented favorably — than on any other prior proposed rule. The 2015 Open Internet Order reflected good, sound law and codified the primary enforcement regime that had been in place in one form or another for most of the prior decade. In contrast, the rescission of the rule was based not on a similar mountain of evidence or changed circumstances, but rather on the ideology of the president’s new FCC appointees.

The states

The blowback against the FCC decision from states and municipalities has been swift and severe. Nearly 20 state attorneys general are challenging the agency’s assertion that it can block states from imposing their own net neutrality rules. State legislators across the country are examining whether they can establish a patchwork of net neutrality mandates through state legislation. Even towns and counties in Iowa, Washington, and elsewhere are examining whether their interactions with internet service providers offer an opportunity to ensure compliance with net neutrality principles.

Congress

The most immediate and effective target for action, however, is Congress. Under a law referred to as the Congressional Review Act, Congress can overturn any agency rule if it votes to do so within 60 “legislative days” from the time the rule is presented to Congress. Since a legislative day is one in which both chambers are in session, in practical terms that means there is likely a four or five-month window before the clock expires on the CRA.

The adoption of a CRA reversal of the FCC rollback would be an ideal and simple solution. It would be as if last week’s FCC vote had never occurred, reverting to a status quo supported by a vast majority of Americans. A CRA resolution will be offered as soon as the FCC rule has been presented to Congress. Already, over two dozen senators have signed on to a proposal to overturn the FCC net neutrality rollback. A similar process has begun in the House.

Unfortunately, some members of Congress have introduced other forms of legislation, but those would largely serve the interests of the internet service providers, who rejoiced at last week’s FCC vote. They don’t contain the net neutrality protections secured in 2015. Back then, the FCC reclassified broadband internet as a "common carrier" — a term used to describe a public utility — so that it could be subject to government regulation. A new bill sponsored by Rep. Marsha Blackburn (R-Tenn.), for instance, appears to provide protections that would prevent ISPs from blocking or slowing down certain kinds of data. But it includes gaping holes in those seeming protections, would stop short of reclassification, and fails to address the many other net neutrality protections we need.

Some bills seem well-intentioned, but they also address net neutrality on a piecemeal basis that falls far short of the 2015 order. Others, such as the Blackburn bill, would actually codify gains for the ISPs under the guise of offering half-protections to internet users.

For now, the CRA resolution — a simple bill to cancel the FCC’s arrogant decision — is the one thing that all outraged Americans can get behind. Congress can and should carry out the will of the people by saving their internet.

Michael Macleod-Ball is the former chief of the ACLU’s Washington Legislative Office, and is now the president of 627 Consulting, LLC, where he advises the ACLU on First Amendment and open government issues.

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Dr. Timothy Leary

Why do we only have net neutrality? Shouldn't we have gross neutrality too?

Anonymous

We lived fine without Internet up to about 25 years ago , so boycott it.

David Morf

Keep net neutrality. Toll road models based on prototype 1935 highways are a feudal transport funding and movement control practice applied to otherwise flexible and scalable 21st Century electronic traffic. The toll model is a caravan of slice and dice cartels carving tollkeeper cash from a public service forced into an artificially constrained mold.

Anonymous

Under federal civil rights laws, in addition to government institutions, these laws can apply to private quasi-governmental companies (ex: security guards, private prisons, etc.). Since it's nearly impossible to function without the internet, ACLU attorneys could make a strong argument that these providers are essentially a quasi-governmental entity and thereby bound by the Bill of Rights restraints.

Carolyn A.

Congress? The vote “was along party lines,” indicating that that avenue is dead. Let’s hope the courts prove a more promising venue.

Anonymous

Well said.

bettergovtguy

Great Article, I appreciate the author and ACLU bringing it to us. In this connection, I have heard of a "Resolution of Disapproval", but know little about it, except that it is related to the CRA. I was wondering if Mr. Mcleod-Ball could help us by elaborating more on this. I have urged my representatives to do as much as possible to overturn this.

Josh Price

The courts: The US Supreme Court in 2005 granted the FCC Chevron deference in the FCC's decision to consider ISPs an "information service". A decision that excludes Title II regulation required to enforce net neutrality rules. Yes, "Just two years ago, the agency adopted net neutrality principles based on extensive research and commentary. A federal court upheld the rule and the appellate court affirmed that decision." Based on the 2005 Supreme Court decision granting the FCC authority to make that determination as they see fit.

What the courts have said consistently is the FCC is a better judge than the courts in making these decisions. You're making an argument in favor of supporting the FCC, not against.

The states: See "The courts"

Congress: Sure. The Republican Congress is going to vote to overturn a decision by a Republican Administrative Agency and then the Republican President is going to sign off on it. Have you lost your mind?

Janet S.

Why is this even being debated? Tens of millions of American's wrote to various officials stating they didn't want this to pass. It passed 3-2... With the new tax rape of the American's this is one more thing for big corporations to make money off the backs of the American worker. I am disgusted by what this country is turning in to. Pretty soon the people will be aiming at the government with pitchforks... History repeating itself.

Anonymous

Who are the sponsors in the House besides Doyle in PA? While most folks are distracted by holidays bestow such great Christmas gifts on already profitable corporation near monopoly's ISPs. AT&T et al.
Utility anti-Trust lawyers will get rich because cable consumers will be badly hurt by the current industry structure. Long Term contracts further limit competition. Municipalities must begin installing broadband to help consumers and contain first amendment freedoms compromised to survive this Corporate regulation power grab.
The Anthem blue cross data breach and others; Consumer’s most personal data is continuously being compromised; past data breaches and future breaches will further limit privacy freedoms of US citizens by explosive growth of identity theft, while The EU communities will continue strong privacy protection.
The internet EU model is better policy, while we descend into China style internal control. Then there is the tax overall scam, which will further impoverish the middle class voting public. Voters will be very angry next November as President 45 "Donald duck" likes to say...December 14 is a day that will live in Infamy.
Maybe the US Courts or Congressional Review Act repeal of the FCC real of Net Neutrality will save us from these gifts to Corporate America. The will maintain their gains by buy/bribe Congress, opps... I mean lobby Congress to maintain their hegemony over consumers. Angry Voter backlash is our best hope.

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