Even before the Republican head of the Federal Communications Commission revealed his plan to roll back “net neutrality” regulations last week, Democrats and their allies were plotting their resistance.
During a conference call with reporters Wednesday morning, Sen. Richard Blumenthal warned that FCC Chairman Ajit Pai and the Trump administration “should expect a tsunami of resistance from a grassroots movement of Americans from every walk of life who are 100 percent committed to defend net neutrality.”
The Connecticut Democrat was referring to the Obama administration’s FCC ruling in 2015 that classified Internet service providers such as AT&T and Comcast as Title II public utilities subject to FCC control, which allowed more stringent oversight of companies that might block or inhibit access to web services by creating pay-to-play fast lanes for certain content. The oversight was championed by companies such as Netflix and Google, which rely on mass public use of Internet bandwidth.
Yet, as expected, Pai announced that the FCC will vote on his proposed rulemaking during its May open meeting to “reverse the mistake” of his predecessor’s Open Internet Order, which he described as “heavy-handed regulations upon the Internet.” While Pai expressed support for the principles of net neutrality, he argued that the rules enforcing it go too far and hurt small businesses and access to the Internet in low-income areas. The text of the proposed rulemaking, titled “Restoring Internet Freedom,” was made public the following day.
If his proposal is passed, which is expected as Republicans outnumber Democrats 2-to-1 on the commission, a public comment period will follow. Pai reportedly has been seeking input on where to go next. He confirmed last week that he met with Silicon Valley leaders. He reportedly sat down with executives including Kevin Martin, a former GOP chairman of the FCC who now works for Facebook, to discuss ways to protect consumers. But if it’s anything like 2014, the GOP-led agency likely will face tough opposition.
Evan Greer, campaign director of Fight for the Future, an Internet advocacy group, said on the conference call with Blumenthal and fellow Democratic Sens. Ed Markey of Massachusetts and Ron Wyden of Oregon that Pai can expect to face opposition this go-around that is similar to the support his predecessor, Tom Wheeler, received when he pushed for net neutrality in the last administration. Not only did 4 million people file comments in 2014, a record according to the Obama administration, but callers also flooded lawmakers’ phone lines, a large-scale online education campaign took place and protesters hit the streets and camped out in front of the FCC in favor of net neutrality.
“We will fight tooth-and-nail to protect these rules and the protect the Internet any from future attacks,” Greer warned.
Sen. Brian Schatz, the top Democrat on the Senate Commerce, Science and Transportation Committee’s Subcommittee on Communications Technology, Innovation and the Internet, said a wave of public comment support for net neutrality that is bigger than in 2014 can be expected this year.
“My instinct is they have no idea how outraged people are about to be, or the volume and velocity and passion of the public comments that are going to come flowing in,” Schatz told TechCrunch last week. “I would not be at all surprised if it was a record number and if they ran 50-to-1 against what the commission is proposing.”
A legal challenge to net neutrality ended in June, when a federal appeals court upheld the government’s regulations. Talk of a second wave of legal action if Pai’s plan is implemented has begun, and Blumenthal said Pai will need a fact-based docket to show that something significant has changed. He argued that the Obama FCC had sufficient evidence to support its case in favor of the Open Internet Order and that “there is no such fact-based docket now.”
Still, Kate Forscey, associate policy counsel for Public Knowledge, a digital rights consumer advocacy group that fights for net neutrality, told the Washington Examiner that the pro-net neutrality side needs to gear up for the fight.
“First, all of the Americans who have come to depend on the Open Internet — we’ll have to make our voice again,” she said, referring to the open comment period. The second front will be the “legal basis” for which Forscey said supporters will have to “reinforce those legal arguments.”
The FCC also expects the fight to go to court. During a conference call with reporters Thursday, a senior FCC official said “I am extremely confident” that the agency’s push to return broadband to a Title I information service would be upheld in court, citing “binding precedent” from a Supreme Court case in 2005.
Despite their fierce opposition to Pai’s plan, Democrats aren’t keen on blocking the FCC’s May vote using parliamentary tactics. With only three of five commissioner spots filled, the FCC’s only Democrat, Mignon Clyburn, could choose to refrain from the May vote to block a quorum of three votes. When asked about it by a reporter, Markey said, “I would not advise her” to do it. Clyburn, in an emailed statement to Bloomberg, said, “I have a job to do. I intend to do that job. I am very proud of the voices and the people that I represent. I intend to continue to represent them.”
In his speech, Pai also made the case that reversing net neutrality would be the next logical step after President Trump signed legislation repealing the FCC’s online privacy rules this month. Because his plan would return broadband to Title I, it would allow the Federal Trade Commission, which can’t regulate common carriers under Title II, to once again police broadband providers’ privacy practices.
Under Pai’s chairmanship, the FCC already has weakened net neutrality by extending a transparency exemption to small Internet service providers and ended an investigation into whether the “zero rating” policies of AT&T and Verizon were violating net neutrality by allowing customers to stream video services owned by a wireless carrier without eating into their data plans.
The recent flurry of action shows momentum behind the backlash against the Obama administration’s Internet regulatory push.
Top Republicans leading communications and technology panels echoed that sentiment. In a joint statement, Sens. John Thune, S-S.D., and Roger Wicker, R-S.D., and Reps. Greg Walden, R-Ore., and Marsha Blackburn, R-Tenn., said now is the time to “come together and work toward a legislative solution that benefits consumers and the future of the Internet.”
Forscey doesn’t foresee the battle taking place in Congress, following several failed attempts over the years to get net neutrality-related legislation passed. “Congress is not in the best position to address this in a flexible manner,” she said.
However, that doesn’t mean Democrats, as high up as Senate Minority Leader Chuck Schumer, won’t fight back on other fronts. In a statement, the New York Democrat said his party will not “tolerate the FCC conspiring with industry insiders to roll back critical consumer protections for an open Internet.”
“We’re on the right side of history,” Blumenthal said.
