For net neutrality advocates, the next phase in this fight has only just begun.
Ajit Pai, chairman of the Federal Communications Commission (FCC), drinks from an oversized coffee mug during an open meeting in Washington, D.C., U.S., on Thursday, Nov. 16, 2017. Image: Zach Gibson/Bloomberg via Getty Images
It happened. After a security threat interrupted the meeting momentarily, the Federal Communications Commission has voted to repeal the net neutrality rules established under the Obama administration. Despite the dissent of the two Democrat commissioners, the protections championed by a majority of the American public are now gone, and Big Telecom is probably starting their holiday partying early.
But before you throw your computer into a lake, rest assured: this ain’t over. In the days, weeks, and months to follow—honestly, even in the next few hours—the next phase in the fight to preserve net neutrality will begin. It will take many forms, and will happen in several arena, but it’s only just begun. Here’s what that fight will look like:
Trying to get Congress to pull an emergency lever
The first course of immediate action will be for net neutrality proponents to pressure Congress to use the Congressional Review Act to pass a resolution of disapproval. This is a mechanism that allows Congress to overrule any regulations enacted by federal agencies. You might remember it’s the tool that the GOP used to eliminate broadband privacy protections earlier this year.
“The CRA is our best option on Capitol Hill for the time being,” said Timothy Karr, a spokesperson for the Free Press Action Fund, an open internet advocacy group. “We’re not interested in efforts to strike a Congressional compromise that are being championed by many in the phone and cable lobby. We don’t have a lot of confidence in the outcome of a legislative fight in a Congress where net neutrality advocates are completely outgunned and outspent by cable and telecom lobbyists.”
Though the GOP currently has control of both the House and the Senate, its stance on net neutrality isn’t as uniform as it is on other issues. A healthy chunk of GOP members of Congress supported rolling back the rules, but a handful of Republicans have spoken out against the decision, including Rep. Mike Coffman of Colorado and Rep. Susan Collins of Maine. With recent polls indicating three out of four Republican voters were against the decision to repeal net neutrality regulations, and the midterms a mere 11 months away, there’s a chance this route could be successful.
Taking it to court
Lawsuits, at this point, are an inevitability. Pro-net neutrality and consumer rights groups will file lawsuits against the FCC, in the hopes that a court will overrule the decision. Both Free Press and the Electronic Frontier Foundation told me their groups are prepared to sue.
“The legal challenge would likely be based on the Administrative Procedures Act, pointing to the FCC’s willful refusal to acknowledge both the economic and technical evidence, and also the numerous flaws in the commenting process,” said Corynne McSherry, the Legal Director for the Electronic Frontier Foundation.
There’s no dearth of fodder for lawsuits here, most notably the fact that the public comment period—on which the decision was supposed to be based—was basically bogus. New York Attorney General Eric Schneiderman said it was corrupted by a “massive scheme” after he found tens of thousands of New Yorkers’ identities were used to file fake comments. A total of 19 Attorneys General signed a letter asking the FCC to postpone the vote due to concerns about the comment filings. Researchers estimated that more than 80 percent of the comments were generated by bots, and the Pew Research Center found only 3 percent of the comments were fully verified. Many comments used phony contact info like email@example.com, and the identities of some of the commenters belonged to dead people.
The process the FCC used to repeal these rules, a Notice of Proposed Rulemaking, requires agencies to consider relevant comments using a formal process under the Administrative Procedure Act. With all the problems during the comment period, it could be argued that the FCC didn’t fulfill its obligation for this step, and that would invalidate its final decision. It’s a stance that Democratic FCC commissioner Jessica Rosenworcel agrees with.
"This is crazy. Two million people have had their identities stolen in an effort to corrupt our public record,” Rosenworcel wrote in a public statement Wednesday. “Nineteen Attorneys General from across the country have asked us to delay this vote so they can investigate. And yet, in less than 24 hours we are scheduled to vote on wiping out our net neutrality protections. We should not vote on any item that is based on this corrupt record. I call on my colleagues to delay this vote so we can get to the bottom of this mess.”
Making our own net neutrality laws
Though the FCC has stated plans to preempt state laws preserving net neutrality, local lawmakers and community groups hope to protect a free and open internet at the state and local level. This will include state legislators introducing transparently pro-net neutrality bills, like Washington state representative Drew Hansen, who Wednesday introduced H.B. 2282, which would prohibit ISPs from blocking any content or throttling service.
“The FCC has claimed that they have the power to preempt state laws but that doesn’t mean they actually do,” Hansen told me over the phone. “I can claim I have the power to manifest unicorns on the Capitol lawn tomorrow, but that doesn’t mean that will happen.”
Hansen told me because the FCC is arguing it doesn’t have the authority to regulate the internet, which is why it is reversing the rules, it doesn’t follow that it would then have the authority to dictate how states regulate the internet. He said, at least in Washington, they will do everything in their power to protect a free internet at the state level if nothing else.
“It’s a godawful mess.”
Expect similar attempts at state and city levels, as well as a greater push for municipal broadband networks, which is growing in popularity as an option especially for communities with little access to the internet.
When communities or local co-ops are able to build their own internet, they can demand that net neutrality be baked in, which not only preserves access to a free and open internet but creates a market pressure on private competitors to do the same. Nobody is going to switch from the town internet to AT&T, if AT&T won’t let you watch Netflix.
Pushing for real rules, and maybe a whole new agency
At the crux of this debate is one glaring issue: the net neutrality rules we had in place weren’t perfect either. While having some regulation is better than none, listing ISPs under legislation that was created in 1934 is an imperfect solution.
“It’s a godawful mess,” David Farber, a former FCC chief technology officer and one of the godfathers of the internet, told me. “They were not at all designed for this.”
Farber pointed out that even if net neutrality advocates are successful in reversing the FCC decision, the GOP is likely to push back, and regulations that are constantly in flux don’t do anyone any good. The reality is that none of the agencies we currently have in place were designed with even the faintest clue of what future technology would hold, and comparisons to utilities like water or commodities like oil, while the best analogies we have in our current regulatory system, aren’t completely appropriate. To truly preserve a free and open internet, regaining public control is essential, but so is establishing a modern regulatory framework that makes sense.
“What should be done is a relatively bipartisan, non-government organization should sit off in a corner and really come up with a model regulatory authority that Congress could model into law,” Farber said. “This Congress just seems incapable of dealing with anything as controversial as that.”
What can you do:
So if you’re feeling disheartened because you protested and called your members of Congress and tweeted like hell and this still happened, take heart. All of those actions are going to be more important now than ever to make it completely clear to elected officials that net neutrality is important, and Americans aren’t going to let this go. With the midterms looming, it’s going to become even more pivotal to let your local representative know where you stand, so warm up those dialing fingers. There’s still a lot of fight left to come.