Not Dead Yet: Why the FCC’s Net Neutrality Repeal Isn’t the End of Net NeutralityJune 11, 2018
Today, June 11, marks the end of the Federal Communications Commission’s net neutrality rules. The agency created the rules in its landmark 2015 Open Internet Order, which prevented internet service providers from blocking websites, throttling connection speeds, or engaging in paid prioritization schemes to charge for “fast lane” access. The FCC, led by Chairman Ajit Pai, voted to repeal the rules in December 2017, ignoring millions of Americans who urged the agency to put people first by keeping the rules.
There is no easy way to say this: The FCC sold you out. The agency has traded your right to control your own online experience — your right to use the websites and services you want, rather than those a broadband provider wants you to use, at no reduced speed or extra cost — for a giant Reese’s mug full of promises that broadband providers are already walking away from. What’s worse, the repeal also heralds the agency turning its back on consumers, abdicating its authority over broadband while simultaneously asking the Federal Trade Commission to pick up the slack — which the FTC is unlikely to do because, in most cases, it can’t.
As much as it pains us, the public, to lose the FCC’s national rules as this repeal goes into effect, we’re here to remind you that “mostly dead is still slightly alive,” which makes all the difference. The concept of net neutrality is still going strong, as evidenced by state legislators rushing to fill the gap by creating their own net neutrality rules, as well as by consumers, including young students, getting involved at the grassroots level. As an added bonus, the FCC’s national rules may yet rise again — Congress is moving to restore the rules as we speak, and the D.C. Circuit Court of Appeals, which upheld the rules twice when challenged by broadband providers, will soon hear a bevy of lawsuits against the repeal, courtesy of groups like Public Knowledge.
The FCC’s repeal may go into effect today, but both net neutrality itself and the fight for it are far from over. Let’s review where things now stand with officially restoring the agency’s net neutrality rules, piece by piece, and what you can do about it. Broadband providers aren’t likely to make sweeping changes to the internet this week, but we should all remain vigilant as they begin taking steps to limit, control, or otherwise impact what we’re able to see or do online.
Congress: Meet the “Congressional Review Act” Resolution
Congress has one immediate option for restoring the FCC’s net neutrality rules, beginning with using the Congressional Review Act (CRA). This statute provides Congress with expedited procedures for overturning an agency’s action by introducing a “resolution,” or specialized bill, undoing a specific agency’s rulemaking. Think of a CRA resolution as a way for Congress to completely reverse something an agency does and prevent that agency from doing it again.
In this case, Senator Ed Markey (D-MA) introduced a CRA resolution in February to undo the FCC’s vote to roll back the agency’s 2015 net neutrality rules. In May, Senator Markey filed a discharge petition to force the Senate to vote on the CRA resolution. The Senate passed the resolution on May 16, achieving bipartisan support across 52 votes.
That same week, Representative Mike Doyle (D-PA) filed a discharge petition to force the House of Representatives to vote on the same CRA resolution. At least 218 representatives must sign the petition to force a vote on the resolution; conveniently, the resolution also needs at least 218 votes to pass in the House. Although the number may seem a massive hurdle, realize that 170 representatives have already signed the petition (and will presumably also vote in favor of the CRA resolution). This means we are only 48 signatures (and votes) away from sending the resolution to the President’s desk to be signed — which will send a strong message to this administration that Americans overwhelmingly support strong net neutrality rules.
This summer provides the best opportunity for persuading your representative to support net neutrality, thanks to momentum building from public support, so it’s critical that you make your voice heard by calling your representative. You can do even better by joining us in D.C. for an in-person meeting with your representative during our Net Neutrality Advocacy Day on June 26.
The Courts: Round Three in the D.C. Circuit
There are currently two lawsuits about net neutrality happening simultaneously: Public Knowledge is an intervenor in one lawsuit, defending the FCC’s 2015 Open Internet Order that created these net neutrality rules. We won this fight twice in the D.C. Circuit Court of Appeals, but the decision has been challenged by broadband providers and may eventually be heard by the Supreme Court. It’s impossible to predict what the Supreme Court will do and when it might do it, but it’s something to keep an eye on.
Public Knowledge is a plaintiff in the other lawsuit, filed against the FCC in February, challenging its rollback of the net neutrality rules. The D.C. Circuit Court of Appeals will again hear a net neutrality case — this time determining whether or not the FCC’s net neutrality repeal violates the law. Since multiple groups, including at least 22 state attorneys general, challenged the repeal, the court has compiled the lawsuits into a single suit. Later this year, plaintiffs in the suit will file briefs demonstrating exactly why the FCC’s repeal is unlawful; some time after that, the case will be argued before a three-judge panel. A decision in this case is not likely before next year, but needless to say, we are confident in our chances of victory.
The States: Filling the Gap
Some states have stepped up to fill the consumer protection gap the FCC created by passing their own net neutrality bills: namely Washington, Oregon, and Vermont. Several other states are in various levels of this process, and you can track which states have introduced bills, and where those bills are in the process, through the National Conference of State Legislatures. In fact, the NCSL finds that “more than half of the states have introduced net neutrality legislation” since the FCC’s repeal.
California has introduced the most comprehensive net neutrality bill thus far (SB 822), which restores the bright line net neutrality principles (no blocking, throttling or paid prioritization) from the FCC’s 2015 Open Internet Order. The bill recently passed the California Senate and is now being considered in the Assembly. The governor will sign or veto the bill once it passes the Assembly. (Summer Update: The bill just passed the California State Assembly and is now one step closer to Governor Jerry Brown's desk. Fall Update: California Governor Jerry Brown signed the bill into law.)
Still other states, including New York, Hawaii, and Rhode Island, have signed executive orders on net neutrality that require any broadband provider contracting with these states to agree to follow net neutrality principles. At this point, most of the executive orders and net neutrality bills contain the three strong protections enshrined in the FCC’s 2015 Open Internet Order (no blocking, no throttling, and no paid-prioritization).
Lobbying groups representing internet service providers, including USTelecom, have threatened to “aggressively challenge state or municipal attempts” to create net neutrality protections. No such suits have been filed yet. However, we’re confident that, because the FCC has decided that it has no authority over broadband, it also has no authority to preempt state efforts to protect consumers by regulating broadband.
What You Can Do: It’s Not Over Yet
The FCC’s net neutrality repeal goes into effect today, but consumers aren’t completely out of options. We encourage you to contact your representative in the House to urge him or her to support the CRA resolution to restore the FCC’s 2015 net neutrality rules at the federal level. This is the simplest and most direct option at this time — and critical as the House inches ever closer to a vote. If you do nothing else to support the rules, do this.
An in-person meeting with your representative is likely to be even more effective, which is why we are hosting a Net Neutrality Advocacy Day on June 26, where Public Knowledge and our allies will provide a training for participants in the morning and accompany you to your representative’s office in the afternoon. We hope you can join us on this important day.
If you test your internet connection and suspect your broadband provider is throttling or blocking access to content or services, we also encourage you to file a complaint with the FTC and FCC. This will at least log a record of your complaint, demonstrating how real people are experiencing real harms. If you suspect a net neutrality violation and you live in a state that has passed a net neutrality bill, review your state bill’s enforcement language to determine your next move. This may involve contacting your attorney general or some other consumer protection authority in your state to see what your state can do to address your complaint. It’s absurd that the FCC repeal forces you to turn into an investigative reporter to solve the issue, but this is exactly why you need to contact Congress to support the rules.
Finally, you can share your story on social media using #NetNeutrality or reach out to me if you’d like to speak with a reporter about your situation. The road ahead may appear daunting, but this fight isn’t over yet — and you’re not alone.
Image credit: Wikimedia Commons user VideoPlasty