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Net Neutrality’s Dead. The Battle to Resurrect It Is Just Beginning.

Federal and state legislators are already developing plans to stop Internet providers from dictating what you can see online.
January 3, 2018
Chip Somodevilla | Getty Images

An epic power struggle over the future of the Internet will play out in the United States this year. Its outcome will determine just how much control broadband companies like Verizon, Comcast, and AT&T have over the online content they pipe into homes and offices.

The struggle follows last month’s vote by the Federal Communications Commission to scrap Obama-era net neutrality rules that prevented Internet service providers from blocking or slowing down legal content. The rules are due to be replaced by a much lighter-touch regulatory framework overseen by the Federal Trade Commission (see “The Demise of Net Neutrality Will Harm Innovation in America”).

The FCC’s vote underlined the partisan politics that have shaped the net neutrality debate: the agency’s three Republican commissioners voted in favor of repeal, while the two Democrats on the five-member commission voted to keep the rules.

Supporters of net neutrality fear its demise will lead broadband companies to favor their own content over that of rivals, block material more frequently, and run online “fast lanes” that let some businesses pay a premium to get their traffic delivered more swiftly than others—a move that would favor deep-pocketed incumbent companies over startups.

In a bid to stop this from happening, Internet activists and some politicians are ramping up efforts to overturn the FCC’s decision, or to reimpose net neutrality rules through legislation.

Here are the main battle strategies they will employ in 2018:

See you in court

“We’re looking for every opportunity to challenge the FCC in the courts,” says Chris Lewis of Public Knowledge, which promotes an open Internet. Other advocacy groups such as Free Press have also indicated they intend to sue the FCC to try to get its decision overturned, as have a number of attorneys general from states such as New York, Washington, and Minnesota. They’re likely to argue that the FCC acted arbitrarily in scrapping rules it had so strongly championed when it introduced them in 2015.

Another line of legal attack will focus on the public comment process the FCC ran before taking its vote. The agency’s opponents will argue this was riddled with fraud and that the FCC’s decision on net neutrality should therefore be overruled.

An investigation launched by New York’s attorney general, Eric Schneiderman, has found that two million of the comments submitted were made using stolen identities. There’s also evidence to suggest that automated bots generated a large number of submissions.

Seeking state power

Rather than wait for legal challenges to play out, some politicians are already working on legislation to reinstate net neutrality in their states. Two Democratic state senators—Brad Hoylman from New York, and Scott Wiener from California—are championing a bill that would take effect in both states if it gets enough support. Announcing the initiative, Wiener said, “if the FCC won’t stand up for a free and open Internet, then California will.”

When it voted to undo its rules, the agency specifically prohibited states from imposing a tougher regulatory regime than the one that’s set to replace net neutrality. So it’s almost certain to mount a legal challenge to any state net neutrality legislation.

But legal experts say any future judicial review isn’t guaranteed to go the FCC’s way. Marc Martin of the law firm Perkins Coie thinks courts may see a contradiction between the agency’s desire to create a light-touch regulatory regime for broadband providers and its own use of the heavy hand of federal power to block states from doing what they think is right.

Fighting an up Hill battle

Congress will be the most important battleground of all, with advocates of net neutrality hoping that politicians step up and pass a federal law that imposes the rules again. That won’t be easy to achieve given the deep political divisions that exist on the issue and the lobbying power of the big Internet providers.

Congresswoman Marsha Blackburn has proposed federal legislation that critics say falls short of preserving full net neutrality.

There’s already been controversy over a broadband bill proposed by Marsha Blackburn, a Republican representative from Tennessee, that would prevent broadband companies from blocking or slowing down traffic. In a tweet announcing the Open Internet Preservation Act, Blackburn claimed it would “ensure that the Internet is a free and open space.”

Advocacy groups have attacked the bill, which one critic dubbed “fake net neutrality,” because it wouldn’t stop broadband companies from running Internet fast lanes and because it contains vague provisions that could let businesses tinker with traffic as part of what the bill calls “reasonable network management.”

Some Democrats are working on their own draft legislation to reimpose all of the FCC’s former net neutrality rules. They’re also trying to use the Congressional Review Act to get its vote overturned. The CRA gives Congress the power to reverse a federal agency’s ruling within 60 legislative days of it being taken providing a majority in both houses of Congress supports the move. But given the political divide in Washington over net neutrality, this initiative has a slim chance of success.

Open revolt

Beyond the Beltway, there appears to be broad bipartisan support among voters for strong net neutrality rules. In a poll of over 1,000 people conducted by the University of Maryland’s Program for Public Consultation before the FCC’s vote, three out of four Republican respondents said they opposed the agency’s plan to scrap net neutrality rules.

Internet advocacy groups say they’ll look to leverage this support throughout the year, and especially in the run-up to the congressional midterm elections in November. So expect to see many more images like the one pictured at the top of this story in the months ahead.

Previous grassroots uprisings in America have proved incredibly effective at scuppering proposed laws such as the Stop Online Piracy Act, which would have introduced draconian penalties for breaches of copyright online. Advocates of an open Internet are betting that a similar movement will help bring net neutrality back to life in 2018.

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