The fight over net neutrality returns as supporters launch long-shot bid to resurrect the rules
The fight over net neutrality is back.
This time, Democrats and other supporters of the controversial internet traffic regulations are seeking to turn the tables on Republican opponents by using a legislative tactic, popularized recently by the GOP, to resurrect the rules the Federal Communications Commission struck down last year.
The effort formally begins Wednesday as backers file a petition in the Senate that will force a vote next week to undo the FCC’s action. Amazon, Netflix, Facebook, Google and other online giants support the move.
Dozens of websites, including Etsy and Reddit, are expected to launch a “red alert” online blitz on Wednesday to encourage their users to lobby their lawmakers to reinstate the 2015 rules that were designed to ensure the uninhibited flow of data online.
Although they’re poised for a narrow win in the Senate, net neutrality supporters acknowledge the attempt to restore the Obama-era regulations is a long shot. The hurdles include strong opposition from House Republicans and telecommunications companies, such as AT&T Inc. and Comcast Corp., as well as a likely veto from President Trump.
Regardless of the outcome, the debate over net neutrality — and by extension, the future of the internet — appears headed for a key role in November’s congressional midterm elections.
“There’s a political day of reckoning coming against those who vote against net neutrality,” warned Sen. Ed Markey (D-Mass.), who is leading the Senate effort to restore the rules.
Democrats are using the maneuver to keep the issue alive heading into this fall’s elections, which will determine control of the House and Senate, said Daniel Lyons, an associate professor at Boston College Law School who specializes in telecommunications and internet legal matters.
“It keeps the issue in the headlines, and it forces some members of Congress to stake a position they’d perhaps rather not stake,” said Lyons, a visiting fellow at the American Enterprise Institute think tank.
Both sides in the matter say they are trying to preserve the open nature of the internet. The debate, going on for more than a decade, had been about what role the federal government should play in doing that.
In 2015, the then-Democratic controlled FCC took the boldest step yet.
It voted 3-2 to enact regulations that prohibited broadband and wireless internet service providers from selling faster delivery of certain data, slowing speeds for specific video streams and other content and blocking or otherwise discriminating against any legal online material.
To enforce the rules, the FCC classified broadband as a more highly regulated utility-like service under Title 2 of federal telecommunications law.
Republicans and telecom companies argued that the threat of heavy-handed regulation would stifle investment in expanding internet access and speeds. AT&T, other companies and industry trade groups sued to block the rules, arguing that the FCC exceeded its authority in approving the regulations. But a federal appeals court upheld the regulations in 2016.
Trump’s election roiled the issue again. Republicans gained control of the FCC, and Trump tapped Ajit Pai, a commissioner who had voted against the rules in 2015, to be the new chairman. Pai quickly targeted net neutrality, and on another 3-2 vote, the FCC voted along party lines in December to repeal the rules.
Republicans said they were reestablishing the light-touch regulatory approach that allowed the internet to flourish. The repeal meant that the strict regulatory structure largely gave way to market forces.
Telecom companies said they were committed to the principles of net neutrality and had no plans to change their practices. But the companies have hedged on whether they would start charging additional fees to transport video streams or other content at a higher speed through their network in a practice known as paid prioritization.
Paid prioritization could accelerate the development of autonomous vehicles and home health monitoring, which would need reliably fast service. But net neutrality supporters worry telecom companies will set up toll lanes on the internet, cutting deals with some websites to deliver their content faster and squeezing out start-ups and small companies that lack the money to pay for faster service.
Just like the issue itself, the attempt to restore net neutrality is complicated.
A group of 23 Democratic state attorneys general, including California’s Xavier Becerra, filed a lawsuit in February to block the FCC’s repeal. But Markey and other supporters also are employing another strategy: the Congressional Review Act.
The procedure allows Congress, with simple majority votes in both chambers and the president’s approval, to reverse regulations enacted by federal agencies. It had been little used before Trump took office, but since then, Republicans have employed it more than a dozen times to overturn Obama-era regulations.
Because there has been some bipartisan support for net neutrality, supporters are trying to use the Congressional Review Act to restore the rules.
Markey has lined up 50 votes in the Senate: all 47 Democrats, the two independents (Angus King of Maine and Bernie Sanders of Vermont) that are aligned with them, as well as Republican Susan Collins of Maine, to back the repeal of the FCC’s action so far.
On Wednesday, Markey will file a petition to force a Senate vote that Republican leaders cannot block. With Sen. John McCain (R-Ariz.) absent as he battles brain cancer, the repeal measure is set to squeak by on at least a 50-49 vote next week.
But Markey said supporters plan a “full-court press” to convince other Republicans to vote for the measure and provide some momentum as it then would head to the House.
“I’m clear-eyed, but optimistic about the political common sense that ultimately is going to put more votes up on the scoreboard for net neutrality than people today believe is possible,” Markey said. “And as we head toward the election, I think there are people who vote no who are going to regret their vote.”
Net neutrality supporters are targeting Sen. John Kennedy (R-La.) and other Republicans who have bucked the party’s leadership in the past. On Tuesday, Kennedy told reporters he had not made a decision yet on how he would vote.
Backers of the regulations hope a Senate win will provide momentum as the issue moves to the House, which must vote on the measure by the end of the year or it will die. Republicans have a larger House majority, and about two dozen of its members would have to vote for the net neutrality repeal.
Net neutrality supporters note that 15 Republicans crossed the aisle in March 2017 on another internet issue. They voted to uphold FCC broadband privacy regulations that Republicans successfully used the Congressional Review Act to repeal. But net neutrality regulations were much more widely opposed by Republicans.
Conservative activists are lobbying lawmakers to oppose the effort to reinstate the regulations.
“We want to make sure we’re fighting back and showing … Republicans who may be on the fence on this issue that this is not an issue worth giving in on because they’re nervous” about the fall elections, said Patrick Hedger, director of policy for FreedomWorks, a free-market group.
Sen. John Thune (R-S.D.), who opposed the net neutrality regulations, said Tuesday that he didn’t expect the attempt to reinstate them would go any further than the Senate.
“This isn’t going anywhere in the House,” Thune said. “It’s not going to be signed into law.”
Trump looms as a major hurdle.
“The Trump administration supports the FCC’s efforts to roll back burdensome, monopoly-era regulations,” Hogan Gidley, deputy White House press secretary, said in a written statement this week when asked about the president’s position.
In 2014, Trump tweeted his opposition to the FCC’s regulations as they were being considered. But he has been quiet on the matter ever since, and supporters of the regulations hold out hope he could be swayed if the measure somehow gets approved by the Senate and House.
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