by Eric Lieberman
WASHINGTON – The debate over so-called “net neutrality” rules seemed to be over after the Federal Communications Commission (FCC) voted 3 to 2 to repeal internet regulations imposed in 2015. But Democrats are striving for a last-ditch attempt to stop the repeal, even if the path forward appears inauspicious.
Fifty senators — 47 Democrats, two Independents, and one lone Republican — have so far endorsed a legislative move known as the Congressional Review Act (CRA) to undo the FCC’s most recent decision. If the coalition gets one more Republican on board, then they satisfy the simple majority needed for it to pass that chamber.
“Other Republicans, or at least one, will likely join the Democrats with the CRA after the calls for constituents grow louder and the 2018 political midterms near,” Ernesto Falcon, legislative counsel for the Electronic Frontier Foundation, told The Daily Caller News Foundation.
That’s only the Senate vote, however. For the CRA — which would also permanently mandate the 2015 internet regulations — to ultimately pass, Democratic senators need one more Republican and several members of the House, where Republican’s majority is even greater, to join their push. President Donald Trump would also have to sign it after supporting repeal. If it did manage to pass the House and Trump vetoed it, then two-thirds of both chambers would be required to overturn his decision.
“I think it’s highly likely it passes the Senate, or more than 50 percent, and more likely that many people think that it will pass the House,” said Falcon.
“On whether it will pass the President’s desk, I have given up trying to predict this president and think its foolhardy for folks to assume what he will do,” he continued.
Despite the FCC’s recent repeal, some knew it wouldn’t be the end of the policy debate as there are other bureaucratic mechanisms in the legislative arsenal.
“It’s really important for those of us who care about net neutrality to mobilize for 2018,” Democratic Sen. Brian Schatz said, according to a Gizmodo interview. Petitioning the FCC and educating “friends via social media” is also important, “but in a representative democracy, the way to get policy changes is through elections,” he said.
While Falcon thinks there’s a chance to bring back net neutrality, others believe it’s an obvious attempt to galvanize voters ahead of the 2018 midterm elections — as Schatz explained — by stoking the fiery passions of portions of the public.
“It’s unfortunate that Democrats can only get their act together to promote fake policy,” Roslyn Layton, a visiting scholar at the American Enterprise Institute who also served on the 2016-2017 FCC Presidential Transition Team, told TheDCNF. “The Dems don’t appear to be interested in a real solution because they would lose their fundraising cash cow. They energize their base by saying continually that the internet is coming to an end.”
Republican Sen. Bill Cassidy of Louisiana said the “Racist attacks and death threats directed at Chairman [Ajit] Pai and his family are despicable,” after being asked if the Democrat’s attempt at legislation is genuine.
“He has restored incentives to invest in internet infrastructure while preserving internet freedom,” he continued.
“Net neutrality regulations do seem to be a solution in search of a problem,” Conn Carroll, the communications director for Republican Sen. Mike Lee (Utah), told TheDCNF. “The Federal Trade Commission has been policing the internet using established Antitrust Law for over thirty years now, and we haven’t seen any evidence that any new set of regulations is needed.”
As previously mentioned, not all Republicans are against the move. Sen. Susan Collins of Maine announced she’s joining the Democrats, something she hasn’t been afraid to do in recent months and years.
“Repealing these protections would affect every sector of the U.S. economy, jeopardize the ability of Americans in rural areas to realize the internet’s full potential, and impede the internet’s ability to serve our democracy,” Collins and Independent Sen. Angus King wrote in a joint press release. “For these reasons, we will support legislation that will overturn the repeal of net neutrality so that the Internet can remain a level playing field for every American.”
As to why Collins is breaking free from her formal pack, Falcon says it’s because local internet service providers (ISPs), as well as the average person living in her state, have made appeals to her.
“Democrats are doing this because it reflects what people of the country want, and so they have the political advantage,” Falcon said.
Berin Szoka, president of the think tank TechFreedom, says that Collins and King are essentially forcing the issue, trying to spark some form of legislation whether or not they are successful the first time.
“They’re clearly using the threat of the CRA as a way to force Congress to finally act,” said Szoka, who is against classifying the internet as a Title II utility, as the CRA would effectively do. “And they have a point: Congress has been dithering over this issue since 2005,” he said.
Sens. Collins and King could lead the way to permanent solution, which puts net neutrality principles on firm footing and ends the debate over the FCC’s murky legal authority that has gone back and forth over the last decade.
But they’ll need to introduce legislation quickly, so there’s a clear alternative to the CRA. Otherwise, lawmakers on both sides will lose focus as the midterms approach, and the window for legislating will close yet again.
If they are doing it without confidence of it passing all three bodies, “that’s their right,” Falcon says.
Frederick Hill, a top spokesman for Republican Sen. John Thune as chairman of the Senate Commerce Committee, which oversees this issue, told TheDCNF that the congressman wants some form of bipartisan legislation in order “to eliminate regulatory uncertainty.”
“The concern he has expressed with the CRA that’s been proposed is that Democrats are going to be fixated on a resolution that may not pass the Senate, pretty clearly wouldn’t pass the House, and certainly would be vetoed by the President, if it were to clear the other two obstacles, which means ultimately that it will not result in a change in policy,” said Hill. “What it does delay is efforts to try to create bipartisan certainty to end the regulatory back and forth that happens when you go from a Democratic administration to a Republican administration.”
When asked what’s the plan for Republicans and the issue of net neutrality, specifically if legislation is absolutely necessary.
“Sen. Thune has long articulated that what he would like to have happen is to have Democrats engage and come to the table to try to find common ground with Republicans on rules that could be put in place, protections that consumers want, while also putting on appropriate limits for regulators and ensuring there is no overregulation of the internet,” said Hill. “The concern Sen. Thune has is that the effort on the CRA is just extending that time not being right.”
The spokesman declined to provide commentary on Collins’ support of the other side.
Hill added that legislation also seems fairly necessary since no one has made any good proposals for what an enforcement framework would like look without it, even if it has been the jurisdiction of the Federal Trade Commission, or the DOJ’s antitrust bureau.
“One of the advantages you have for legislation over regulation is that regulation and the makeup of the FCC is dependent on who is appointed to and already at the FCC,” Hill continued. “With the legislative process, the White House is involved, and you also have the Senate, and you have greater permanency. That way all industries, both broadband and edge providers (Google, Facebook, Netflix, etc.), are certain of the rules. That has been endorsed by the regulatory body [FCC], but not by Congress.”
And it’s not just a renewed battle in federal politics. Twenty-one U.S. state attorney generals filed suit to challenge the FCC’s recent decision to undo the prior agency administration’s order.
Overall, regardless of the likeliness of the CRA legislation, the debate over net neutrality and the fervor that besieges it is carrying on as Democrats are poised to make it a key issue for would-be voters in the 2018 mid-term elections.