Senate Votes to Save Net Neutrality

The U.S. Senate has voted to keep net neutrality protections in place, using the powers of the Congressional Review Act to block the Federal Communications Commission’s December 14 overturn of the 2015 Open Internet Order.

U.S. Capitol buildingThe U.S. Senate today voted to keep net neutrality protections in place, using the powers of the Congressional Review Act (CRA) to block the Federal Communications Commission’s (FCC) December 14 decision to overturn the Open Internet Order. Established in 2015, the Open Internet Order is a regulatory framework codifying a decade of FCC precedent prohibiting Internet Service Providers (ISP) from blocking or slowing content created or hosted by their competitors, or charging fees for web-based services to reach customers on an ISP’s network without being throttled.

All 49 members of the Senate Democratic Caucus voted to restore these net neutrality rules, along with Senators Susan Collins (R-ME), John N. Kennedy (R-LA), and Lisa Murkowski (R-AK). The legislation will face a much tougher fight in the House of Representatives, where Republicans hold a 43 seat majority. If approved there, it would need to be signed by President Donald Trump.

Despite these long odds, the Democratic Caucus believes that net neutrality is an issue with broad bipartisan support among the public, particularly young voters. In a national survey of 1,077 registered voters, conducted in December by the Program for Public Consultation at the University of Maryland, 83 percent of respondents were opposed to the FCC’s repeal of net neutrality rules—including 75 percent of Republicans, 89 percent of Democrats, and 86 percent of Independents.

"I have literally never seen an issue that polls so decisively on one side," Sen. Brian Schatz (D-HI) told The Hill last week. This legislation, regardless of its success or failure, will require Republican legislators to go on record with a stance on net neutrality ahead of the 2018 midterm elections.

Opponents will be vulnerable to accusations that they favor phone and cable companies—which regularly receive the worst ratings among the 43 industries tracked by the American Customer Satisfaction Index—over the needs of their constituents.

On Monday, officials from the American Library Association (ALA), Association of Research Libraries (ARL), Rural Broadband Policy Group (RBPG), Consortium for School Networking (CoSN), and the State Educational Technology Directors Association (SETDA) hosted a joint press briefing to reiterate the need for net neutrality protections for libraries and educational institutions, and to urge senators to vote for the legislation, which was introduced by Sen. Ed Markey (D-MA).

“Strong, enforceable network neutrality protections are essential to ensuring open and nondiscriminatory access to information for all, and that is a vital concern for our nation’s libraries,” said Larra Clark, deputy director of ALA’s Office for Information Policy. Giving ISPs the opportunity to charge fees for paid prioritization of Internet traffic is likely to have negative consequences for institutions such as libraries, Clark said.

“A world in which libraries and other noncommercial enterprises are limited to the Internet’s ‘slow lanes’…undermines a central priority for a democratic society: citizens must be able to inform themselves and each other just as effectively as the major commercial and media interests can inform them.” Paid prioritization could also stifle innovation outside of the corporate sector, noted Krista L. Cox, director of public policy for ARL.

“Open Internet has fostered equitable access to information and sparked new innovations including distance learning, such as Massive Open Online Courses (MOOCs). It is also critical for non-commercial voices seeking to widely share information. Without the rules governing net neutrality to ensure that blocking and [traffic] discrimination do not occur, the Internet could be available only to those [with] the financial resources to pay to have their content prioritized. As libraries undertake cutting-edge research and build platforms that are, in turn, building blocks for other innovations that reverberate through the public and private sectors, we think it is really critical to maintain the character of an open Internet.”

As an example, Cox questioned how paid prioritization might impact an institution such as the National Library of Medicine, which uploads 10 terabytes of data each day, and offers access to vast medical datasets, video tutorials, and other content to doctors and researchers.

Arguing that the Open Internet Order was unnecessary and that abolishing it would foster innovation in emerging fields such as telemedicine and self-driving cars, the FCC, led by chairman Ajit Pai, overturned the net neutrality rules in December, despite widespread public opposition to the move. The FCC’s revocation was published in the Federal Register on May 11, and is scheduled to go into effect on June 11, officially freeing ISPs to block or throttle content and implement paid prioritization policies.

Pai, a former lawyer for telecom giant Verizon, has frequently described the elimination of net neutrality as a return to the “light-touch regulatory framework” that helped the Internet thrive for decades. In reality, the FCC had used fines and legal actions to prevent ISPs from throttling and blocking content since 2005, when fewer than half of U.S. households had broadband access. Pai’s FCC has given few indications that it would use similar tactics to police ISP behavior on a case-by-case basis.

Dozens of states and cities have since taken action to preserve net neutrality locally via legislation, regardless of how the federal bill pans out. Washington and Oregon have already passed state laws. A bill currently moving through California’s state legislature would be even stricter than the Open Internet Order, and would include a ban on paid data-cap exemptions. Sen. Brad Hoylman (D-Manhattan) recently introduced a version of the California bill to the New York State Senate. The governors of Vermont, Hawaii, Montana, New Jersey, and New York have issued executive orders requiring ISPs to refrain from blocking or throttling practices in order to be eligible for government contracts.

In March, mayors Bill de Blasio of New York City, Steve Adler of Austin, TX, and Ted Wheeler of Portland, OR, announced the Cities Open Internet Pledge, promising that they will require all ISPs doing business with their city governments to adhere to net neutrality principles. More than 100 other mayors have since committed to the pledge.

If the CRA effort fails in the House of Representatives, these states and cities will likely face lawsuits from ISPs, arguing in part that FCC’s repeal preempts states from passing such regulations. However, as a February article on the technology website Ars Technica points out, the FCC explicitly states in its overturn of the Open Internet Order that Internet access should be classified as an unregulated information service, and that Congress never intended to subject broadband to FCC jurisdiction under Title II of the Communications Act. This could put ISP legal teams in the position of arguing that the agency doesn’t have the authority to regulate ISPs, yet still has broad authority to preempt state regulations.

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