Net Neutrality: The War is Not Over!

The war for net neutrality is not over. Far from it, it’s just beginning. The latest move by the FCC, headed by Ajit Pai, is just the latest battle in a war that will eventually end up in the Supreme Court.

Pai and Republican members of the FCC voted to repeal Obama era rules meant to keep the Internet free and open to all. This is a critical moment in the history of the Internet.  The commoditization of information has taken a step forward. Pai and other pro-business Republicans claim the Obama administration had hijacked the Internet hindering innovation. The new FCC rules mean what you can access now depends how how much Internet you can afford. But defenders of the open Internet have taken up the call for battle.

States get involved.

Already one state has begun to fight for net neutrality within its borders. California, the home of Silicon Valley, has begun the process to enforce in-state net neutrality. State Senator Scott Wiener announced plans to introduce California’s own net neutrality rules. Wiener is considering the best regulatory options with plans to introduce a law early next year. Wiener wrote in Hackernoon, “By repealing net neutrality requirements, the Trump-controlled FCC is allowing Internet service providers to decide which websites will be easily accessible and which won’t. Providers are now free to manipulate web traffic on their networks, which means they can speed up or slow down traffic to certain sites and even block access.”

Weiner is contemplating requiring cable companies to accept state net neutrality laws as part of their agreement for doing business in California. California is one the world’s biggest economies and his action, if passed in a powerfully Democratic state, would force ISPs to accept net neutrality laws.

New York is also joining the battle. New York Attorney General Eric Schneiderman has announced that he will sue the FCC to stop the new net neutrality laws. Schneiderman tweeted; “ll be leading a multi-state lawsuit bringing the resources of AGs across the country to bear in the fight to protect the Internet and the millions of Americans who rely on it.”

It’s unknown how many other states will be joining Schneiderman but several states joined a letter calling for a delay of the vote due to evidence of fake comments during the public feedback process. That letter included the signatures of 18 attorneys general from the states of Virginia, Delaware, Hawaii, California, Kentucky, Massachusetts, Iowa, Illinois, Maryland, Maine, Mississippi, Oregon, Pennsylvania, North Carolina, Rhode Island, Washington, Vermont and the District of Columbia. Schneiderman says he is expecting others to join that group.

Congress may act.

Member of congress could take action as well to stop the rule change. Under the Congressional Review Act (CRA), Congress is empowered to issue a resolution of disapproval that overrules the FCC’s decision. But don’t expect that to happen quickly if at all. The CRA only gives Congress a 60 day window in which to act. Any action must have presidential support or backing from two-thirds of the House and Senate. That has yet to be seen and Trump can’t decide if he likes net neutrality or not.

Democratic legislators Sen. Ed Markey of Massachusettes  and Rep. Mike Doyle of Pennsylvania have introduced a resolution of disapproval after the FCC vote. Markey has already followed through with the support of 17 other Senators. Doyle said in statement, “I’ve tried repeatedly to convince Chairman Pai to abandon his plans to dismantle the Open Internet Order, most recently by organizing a letter from 118 Members of Congress urging him not to take this vote. And now that the FCC has voted to kill net neutrality and give ISPs a green light to control access to the Internet, I will introduce legislation under the Congressional Review Act to overturn the order and restore net neutrality.”

Doyle is not the only member of Congress that Pai simply ignored before voting to repeal net neutrality. Republican Sen. Susan Collins of Maine and Angus King, an Independent also from Maine  sent a last-minute letter asking Pai to cancel the net neutrality vote. “Repealing the FCC’s net neutrality rules will undermine long-standing protections that that have ensured the open internet as a powerful and transformative platform of innovation and economic opportunity,” they wrote. “We respectfully ask that the commission cancel the vote on the proposed order as scheduled and give Congress and the FCC the time to hold public hearings in 2018.” As you know Pai went ahead with the vote.

Not all Republicans are on board with the new net neutrality rules. Of the 239 Republicans in the House 107 have voiced their support for ending net neutrality. The position of the remaining members is not currently known. Some Republican lawmakers have been critical about the FCC’s process without specifically calling for a delay. Republican Sen. John Thune of South Dakota believes net neutrality belongs in the hands of lawmakers, not the FCC.

Next Battle Field: The Courts.

This battle is headed for the courts. Several advocacy groups, lacking faith in a Republican controlled Congress, are plotting their strategies to take on Pai and the FCC.

Critics claim they have a number of reasons to sue. These groups may argue that because the rule change comes only two years after Obama put them in place the decision is arbitrary.

Supporters of net neutrality are also arguing that ISPs should continue to be treated as Internet pipes or conduit that only carry data. This data includes movies and videos from major content providers like Netflix and Facebook updates. Advocates also argue that the FCC is wrong to categorize ISPs as as content providers, which are far less regulated. At least three public interest groups, Public Knowledge, Common Cause and FreePress are preparing to sue.

The Internet Association, a trade group and that counts Alphabet Inc., parent company of Google, Facebook Inc., and Pandora Media Inc. as members said it was reviewing Pai’s order “and weighing our legal options.”

Senior Vice President of Public Knowledge Harold Feld argues that Pai’s plan to re-categorize ISPs from common carriers, regulated as a public utility, to more lightly regulated “information services” will fail in court. Feld believes that the primary role of ISPs is delivering content. As carriers of data they are not offering email or online storage.”Their description of how the Internet service provider works is …. not true,” said Feld.