Jun 11, 2018 7:00 AM

The FCC's Net Neutrality Rules Are Dead, but the Fight Isn't

Efforts continue in Congress, the states, and the courts, to prevent internet providers from blocking or favoring certain content.

Federal net neutrality protections are officially dead.

Today the Federal Communications Commission's rules barring internet providers from blocking or slowing content, or giving special treatment to certain content, were wiped off the books, following an FCC vote last December. But don't expect to see huge changes right away.

First, there are still some rules constraining broadband providers. Several states, including New York and Washington, have passed regulations that ban or discourage internet providers from favoring certain content based on payments from content providers. Comcast, the nation's largest broadband provider, is temporarily forbidden from violating net neutrality under the terms of the government's approval of its 2011 acquisition of NBC Universal; that restriction expires in September. Charter, the second-largest home broadband provider, is required to uphold net neutrality until 2023 under the terms of its acquisition of Time Warner Cable in 2016.

Meanwhile, most major internet providers have promised not to block, throttle, or discriminate against legal content. But net neutrality activists don't want to take the companies at their word. They’re fighting to block the FCC's December decision in both Congress and the courts while also working to pass new state laws.

Congress Considers Restoring Rules

The most immediate battle to save net neutrality is legislation that would effectively force the FCC to bring back the rules the FCC approved in 2015. Under the Congressional Review Act, or CRA, Congress, with the approval of the president, can not only reject regulations issued by a federal agency but effectively bar that agency from taking similar action again.

Legislation overturning the FCC's December decision passed the Senate in May with three Republicans and all Democrats and independents voting in favor. The next step would be a vote in the House, where it needs more than 20 Republicans to support it before the end of the year.

US Representative Mike Doyle (D-Pennsylvania), who introduced the legislation in the House, filed a petition last month that would force a vote if a majority of House members sign it. That’s a tall order; to date, 170 members have signed. But it might be doable, given the bipartisan support for net neutrality. A recent Morning Consult poll found that 60 percent of registered voters, including 63 percent of Republicans, support the idea of net neutrality. An earlier poll by the Program for Public Consultation at the University of Maryland, which attempted to explain both sides of the issue to respondents, found that 83 percent favored keeping the FCC's net neutrality rules, including 75 percent of Republicans.

Former FCC lawyer Gigi Sohn points out that last year when Republicans used the CRA to kill Obama-era internet privacy rules, 15 House Republicans crossed the aisle to vote with Democrats to save the protections. Sohn argues that more Republicans could have been persuaded to vote against the legislation if there had been more time. And activists have won against long odds before. For example, in 2012 public pressure persuaded Congress to kill an intellectual property bill known as SOPA/PIPA.

Even if the measure passes the House, it will need to be signed by the president, who hasn't been supportive of net neutrality in the past. But Free Press policy director Matt Wood points out that the administration is unpredictable and has embraced more populist policies at times, such as its opposition to AT&T's proposed acquisition of Time Warner.

The CRA isn’t the only attempt in Congress to address net neutrality. Last year, Representative Marsha Blackburn (R-Tennessee), a long-time critic of net neutrality, proposed a bill that would ban internet service providers from blocking content, while allowing “fast lanes.” It would also ban states from passing their own net neutrality laws and limit the FCC’s authority over broadband. Last month, during the Senate’s debate over the CRA, Senator John Thune (R-South Dakota) said he would reintroduce a similar bill he first introduced in 2015 that bans paid prioritization, but likewise limits the FCC’s role in overseeing broadband. Neither bill covers broadband providers’ use of data caps or the obscure but important behind-the-scenes deals they make with each other. Net neutrality advocates have generally seen both bills as inadequate or even harmful. “At the end of the day this bill is a cynical attempt to distract GOP lawmakers who are considering voting for the CRA to restore MUCH stronger, REAL #NetNeutrality protections,” the group Fight for the Future tweeted last month about Thune’s proposal.

States Take Action

Some state governments, meanwhile, aren't waiting for Congress. Washington became the first state to pass net neutrality protections in March. Last month, the California state senate passed a net neutrality bill that would actually offer stronger protections than the Obama-era FCC rules. The bill is now awaiting a vote by the California Assembly before moving on to Governor Jerry Brown. New York state lawmakers are considering a similar bill. If both bills pass, that would give 17 percent of the country stricter protections than they enjoyed under the Obama-era rules.

New York is also among the several states that have taken a more indirect approach to ensuring net neutrality. In January, Governor Andrew Cuomo signed an executive order that banned state agencies from doing business with internet providers that don't agree to uphold net neutrality. The governors of Montana, New Jersey, Hawaii, and Vermont have signed similar orders, and Oregon passed a similar state law.

Broadband providers claim that these state-level rules would burden them with a "patchwork" of rules. The telecommunications industry group US Telecom has vowed to challenge state rules in court. That could come to a head soon, because the FCC order taking effect to revoke the Obama-era rules also bans states from passing their own laws. Legal experts are unsure whether that ban will hold up in court. Marc Martin, a former FCC staffer who is chair of law firm Perkins Coie's communications practice, told WIRED earlier this year that while it's not clear if state level protections such as those in Washington will withstand legal challenge, the executive orders are on more solid footing because states have broad authority to choose how they spend their budgets. "I wonder if anyone will even fight it," Martin says.

Court Battles

Perhaps the biggest cloud of uncertainty is whether the FCC could legally repeal the Obama-era rules. A law called the Administrative Procedure Act bans federal agencies from making "arbitrary or capricious" decisions. Net neutrality advocates have sued the FCC in federal court, arguing that voting to revoke them less than three years after they were passed in early 2015 is capricious.

The lawsuit was initially filed by several state attorneys general, and was joined by advocacy groups, industry groups, and by companies including Etsy and Kickstarter. But a timeline for the case has yet to be approved, says Wood of Free Press, one of the organizations involved in the suit. It will take months for the two sides to file briefs and responses. It's possible that a court will reach a decision by early 2019, but it could easily be at least a year from now before a decision is reached, Wood says.

While Congress can block the FCC from trying to revoke net neutrality laws again, the outcome of the court case will be less final. If the FCC loses the case, the agency would be free to try again to dismantle net neutrality. And if the FCC wins, it could actually make it easier for Democrats to restore net neutrality rules the next time the party controls the White House.

That means regardless of what happens in court, the fight is far from over.