Net Neutrality Bill Passes Senate and Moves to the House

The issue of net neutrality has come up again and again as efforts continue to overcome the FCC’s  repeal of the protections of the Open Internet Order last December. Just weeks ago, matters came to a head as the FCC officially stated that the net neutrality rules would end on June 11th after several months of delays. However, just last Wednesday the Senate acted to repeal the FCC’s actions.

In a squeaker of a vote, the Senate Voted 52 to 47 to repeal the FCC’s moves from last December. The vote was nearly completely divided along party lines, the votes in favor included 47 Democrats, 2 independents, and only three Republicans. Prior to and since the vote, conservative Senators have repeatedly voiced discontent with the bill–known as the Restoring Internet Freedom Act–describing it as a last ditch effort with no chance to succeed.

Unfortunately, the reality is they may be right to some extent. This effort to restore consumer protections faces enormous challenges if it is going to succeed. For those unfamiliar, let’s look at the Open Internet Order, the FCC repeal, and the Restoring Internet Freedom Act.

What Does the 2015 Open Internet Order Say?

We’ve talked a few times about the effects of the Open Internet Order, as well as the years of challenges it faced in the courts. With that in mind, we’ll keep the discussion brief and focus on the consumer protections the Open Internet Order created.

The Open Internet Order changed the classification of ISPs to that of a public utility such as telephone services–often known as common carrier status.  This gave the FCC the power to regulate broadband internet.

The regulations they put in place are the cornerstones of net neutrality rules, five rules that ISPs must abide by:

1. Internet service providers (ISPs) “may not block access to legal content, applications, services, or nonharmful devices.” In other words, ISPs can’t block access of any legal user to any legal website.
2. ISPs can’t throttle, or slow down, the delivery of any legal internet traffic.
3. ISPs can’t make a company pay to give its data packets priority delivery or prioritize the delivery of data from their own services.
4. ISPs can’t adopt practices which would harm consumers or people providing services on the internet.
5. ISPs must offer transparent specifics on how they run their broadband networks.

These rules served to protect users from ISPs throttling them, blocking access to content in favor of content they provide themselves, forcing users to purchase internet in packages similar to buying cable channels, create slow lanes and paid fast lanes, and more.

FCC’s Repeal Under Ajit Pai

Despite how important these protections were, the FCC under Ajit Pai voted 3-2 to roll these rules back–an enormous blow to the effort for net neutrality. We’ve discussed this repeal in depth as well, so once again we’ll just hit the highlights–or lowlights depending on how you think of them.

First and foremost, as mentioned, the FCC order–once fully in effect–repeals the rules and protections of the Open Internet Order and removed the Title II common carrier classification that gave the FCC their ability to regulate broadband as they did.

The only remaining regulation was the requirement that ISPs tell consumers in their terms of service if they decided to start blocking access or creating paid fast lanes. As of now, no ISPs have taken this step. However, a few have removed from their policies any statements regarding commitments not to start doing this.

One more element of note, especially because it will certainly be the subject of future litigation, is that the FCC rules on the issue also forbid the states from introducing legislating on the issue–outright stating that the FCC rules preempt them.

What is the Restoring Internet Freedom Act?

The most recent move, the Restoring Internet Freedom Act, takes advantage of a little used–or at least little used before President Trump took office–power known as the Congressional Review Act (CRA). Before 2017, the CRA had only ever been invoked once–now we’re up to 15 times.

The CRA allows Congress to overturn newer regulations out of federal agencies with a simple majority vote. This is an enormous power check for the Legislative branch to have over an Executive agency–although most agencies operate under a Legislative grant of power so there is some logic to the rule. Congress has always had the power to make laws overruling federal agencies.

Under the CRA, once a rule is repealed in this manner, the agency in question is not allowed to issue any rules that are the same or very similar unless Congress explicitly says that they can. The actual CRA bill has a time limit, Congress can’t act after they’ve been in session for 60 days after the rule is issued. This is notably very different from 60 calendar days. For instance, Congress has used the CRA to target laws from as long as two years ago.

Regardless, the tool has been put to use here to target Ajit Pai’s repeal of the Open Internet Order and accompanying ruling. The actual text of the Restoring Internet Freedom Act is incredibly simple, just a few paragraphs long. It essentially directly follows the powers of the CRA discussed above. The Act repeals the effects of Ajit Pai’s rules, prohibits the FCC from passing similar rules, and reclassifies broadband as telecommunication service common carrier.

These changes would be huge for net neutrality, but the battle here is only just begun. While the passage of the Restoring Internet Freedom Act in the Senate is a huge move and quite a surprise. However, with the bill going to the House, any further progress on this Act will take enormous effort.

Unclear How Much This Will Mean in The Long Run

To say that the Republican controlled House is unlikely to pass this bill is like saying water is wet. They haven’t even taken steps to hear the bill at this point and, due to the nature of CRA bills, they could simply wait until the bill dies on its own and never even bother voting on it.

Even if the House voted in favor, President Trump could–and would if reports from those around him are true–veto the repeal. With such a narrow victory in the Senate, this would make long term success nearly impossible.

Congress continues to disappoint on this issue, choosing ISPs over consumer protections. The tenets of net neutrality are core to how the internet has operated for decades. What’s more, the consistent arguments that the ISPs will police themselves seem a bit hollow given the frequent examples of them getting caught with their hands in the cookie jar when it comes to violating these rules. If somebody steals from you, you don’t invite them back into your home because they pinky swear they won’t do it this time.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure.