The net neutrality fights of 2017 are being reignited, with lawsuits and legislation being proposed to preserve net neutrality before federal regulations are rolled back early this spring.

Under net neutrality, all internet traffic is transmitted to consumers the same way, regardless of whether an internet service provider has a financial stake in one content provider or another.

Net neutrality has been mandated by Federal Communications Commission regulations since 2015. But in December 2017, under new leadership, the FCC voted to overturn those rules, while also restricting the agency's authority to regulate ISPs in the future. 

More on Net Neutrality

Those changes are now due to go into effect on April 23, a date determined when the order was published in late February in an official government publication called the Federal Register. 

Without the rules, an internet service provider (ISP) such as Comcast or Verizon could slow down or block access to some websites. The ISPs also could accept fees from web companies to make their videos or other content load faster than competitors’ in “paid prioritization” deals.

“This was all debated before, and we had federal net neutrality rules in place,” says Tom Stevens, a Vermont state legislator who is cosponsoring a net neutrality bill. “But now that's being taken away, it’s up to the states to say, ‘No, we don’t accept that,’ and do what’s right for the people who live in those states.”

State Action Heats Up

In recent months, 26 states have introduced legislation and a number of governors have signed executive orders to enact their own net neutrality rules.

In early March, for example, a net neutrality bill in the state of Washington passed both houses of the state legislature and was signed into law, making it the first state to enact net neutrality legislation.

Such measures face opposition from leading broadband industry groups. “ISPs are committed to preserving an open internet, but state by state actions aren’t the answer,” a spokesman for the Internet & Television Association says. “Americans are tired of the endless partisan carping on this issue and deserve a permanent solution which ensures sensible consumer protections within the proven framework of light-touch regulation.”   

State efforts face a legal hurdle. The FCC’s Restoring Internet Freedom order, the document rolling back federal regulations, contained a preemption clause that barred states and local governments from passing their own net neutrality laws. It's expected that ISPs will sue the state of Washington to see if the FCC preemption is valid.

However, consumer advocates who favor net neutrality point to another major provision of the FCC order, one that declared the agency isn’t authorized to regulate internet service providers.

“If the FCC doesn’t have the authority to regulate those services, it can’t tell the states not to,” says Harold Feld, a telecom lawyer and senior vice president of public knowledge, who examined the issue in a blog post last week.

State legislators agree. “We’ve learned enough to know what we can and can’t do,” Vermont’s Stevens says. “We're pretty confident that the FCC’s preemption isn’t valid in the way we regulate the internet in our state.”

It’s not just state legislators who are getting involved in the issue. Governors of several states—including Hawaii, Montana, New Jersey, New York, and Vermont—have issued executive orders to impose net neutrality rules.

The details vary, but in general the executive orders are using the power of government contracts to pressure ISPs to abide by net neutrality principles for the residents of their states.

“Governor Cuomo issued an executive order that requires any company seeking to do business with the state of New York to adopt principles of net neutrality,” a spokesperson for New York’s governor told Consumer Reports. “Those principles apply not only for state business, but to all its customers, including consumers.”

What Congress Could Do

Existing federal net neutrality rules were written by the FCC—and the FCC is ending them—but Congress could overrule the agency.

The simplest way would be to invoke the Congressional Review Act (CRA), until recently a seldom-used legislative maneuver that gives Congress the right to block regulations written by federal agencies, and even prevent the agencies from proposing similar rules in the future.

This legislative procedure was used by Congressional Republicans last year to undo broadband privacy protections approved by the FCC under the Obama Administration.

Senate Democrats favor using the CRA to preserve current net neutrality rules, as do two independents and one Republican, Susan Collins of Maine, bringing the number of Senators favoring the action to 50. That means proponents need just one more vote for the CRA to pass the Senate.

Consumers Union, the advocacy division of Consumer Reports; other consumer groups; and digital companies such as Tumblr, Reddit, and Sonos, are organizing a “day of action” on February 27 urging people to ask their Senators to support the CRA effort, using the hashtag #OneMoreVote. 

A CRA measure would also need to be passed by the House and signed by President Trump.

In addition to the CRA, there are bills in Congress to bypass the FCC and directly mandate some version of net neutrality. Such a law could make compliance easier than a patchwork of state laws, both broadband companies and consumer advocates have said. And, a law might provide more consistency on the issue than the FCC, which can flip-flop on the issue with every change of administration.  

Rep. Marsha Blackburn (R-Tenn.) has introduced a widely discussed measure called the Open Internet Preservation Act, which would ban blocking and throttling of websites.

Consumer groups say they are skeptical of the bill, because it would allow ISPs to engage in “paid prioritization” deals that create internet fast lanes for companies that can pay for them. And, the bill prohibits state governments from enacting their own, potentially stronger net neutrality laws, and bans the FCC from imposing other kinds of regulations on broadband providers.

“Any discussion about a legislative solution has to start with standards that are as strong as the 2015 rules, or stronger,” says Jonathan Schwantes, senior policy counsel for Consumers Union. “These standards are essential to preserving the internet as we’ve known it, where information and ideas flow freely, companies big and small can compete, and consumers are protected.” 

But First, the Lawsuits

The surest thing about the debates over net neutrality may be that they are headed to court.

Under FCC rules, challenges have to be filed within 10 days of the new rules being published in the Federal Register, and there has been a resulting flurry of activity over the past few days. 

The attorneys general of 23 states, plus the District of Columbia, have sued the FCC to reverse its repeal of net neutrality rules, and to remove the provision blocking state and local laws. 

So did both the Mozilla and Vimeo internet companies, along with Public Knowledge and the California Public Utilities Commission.

These lawsuits argue that the FCC’s Restoring Internet Freedom order violates a law called the Administrative Procedure Act, which prohibits arbitrary and capricious rule making.  (A number of the lawsuits had already been initiated, and are now being re-filed.)

“When the FCC chose to repeal net neutrality, it ignored the millions of Americans that filed comments to preserve an open internet, as well as the overwhelming majority of Americans who—in poll after poll—support these strong standards,” Consumers Union’s Schwantes says. 

 

Editor's Note: This article has been updated with new information about state legislative efforts.