When Trump-appointed FCC chairman Ajit Pai announced early this year that he would seek to roll back Obama-era net neutrality rules, most people thought that it would be game over. Changing FCC rules requires a simple majority vote of FCC Commissioners, and the party that controls the executive branch also controls the majority of seats on the FCC.
As predicted, the FCC voted to overturn net neutrality rules in November, 3-2 along party lines. But House Democrats have quietly put forward a bill using the Congressional Review Act, a little-known piece of legislation that up to now, had almost exclusively been used by Republicans to overturn federal rules put in place by the Obama administration. Against all the odds, the bill is collecting co-sponsors and even Republican support, and it now looks like it has a realistic chance of getting the votes to pass through the Senate.
Sen. Ed Markey (D-Mass.) wrote a bill under the CRA that would erase the FCC’s net neutrality repeal, and thanks to Senate Democrats, it now has 40 co-sponsors, meaning it will go to a full Senate vote in the near future. Right now, it seems eminently possible that the bill will pass the Senate. Republicans only hold a majority of 51, and you can expect all 49 Democratic senators to vote for the CRA bill.
That means only two Republican senators need to flip on the bill, and one is already on board. Susan Collins, R-Maine, voiced her support today for the bill, with a spokesperson telling Bangor Daily News that “she believes that a careful, deliberative process involving experts and the public is warranted to ensure that consumers have strong protections that guarantee consumer choice, free markets and continued growth.”
Even if the Democrats do get one more Republican to vote for the bill, and successfully pass it through Congress, the chances of preserving net neutrality via the Congressional Review Act seem slim. A bill would have to pass the House of Representatives, where Republicans have firmer control, and then be signed into law by President Trump. Given that he backed the FCC’s repeal of net neutrality provisions, the chances of that happening seem slim right now.
So why even bother? Simple: net neutrality enjoys uncommonly high support from both Democratic and Republican voters right now. Huge amounts of public support were whipped up during the FCC’s public consultation period, and the issue is still fresh in the minds of voters. If Democrats can force a vote in the Senate, and ideally a vote in the House, they would be forcing Republican lawmakers to take a very public stance on net neutrality during an election year. This is a clear-cut political win-win for Dems: either they preserve net neutrality rules, or force Republicans to side with big telecoms companies against the will of the American people.
If nothing else, the speed at which the CRA net neutrality bill has garnered support in Congress bodes well for a real net neutrality bill. While the Obama-era regulations that gave the FCC the power to enforce net neutrality were better than nothing, most pro-net-neutrality parties agree that the gold standard for net neutrality protections would be a bill passed through Congress, clearly defining net neutrality and mandating the FCC (or some other federal agency) to robustly enforce net neutrality principles.
As it stands, even if the CRA bill is successful and the Obama-era FCC net neutrality rules are restored, enforcement is still at the discretion of the FCC, which under the control of former Verizon lawyer Pai has shown a singular disinterest in regulating the telecoms industry. Much better would be a law mandating the FCC or Justice Department to enforce specific provisions, which would make the process more transparent and less depending on having an activist FCC.
But regardless of whether the CRA bill achieves anything concrete, the quick support is a shrewd move from Democrats, and a win for net neutrality activists. “Senator Collins has sided with her constituents and the overwhelming majority of voters from across the political spectrum,” said Evan Greer, campaign director of Fight for the Future. “Her support for a Senate vote to block the FCC’s repeal of net neutrality shows that this is not a partisan issue, and brings us one huge step closer to restoring basic protections that keep the Internet free from throttling, censorship, and paid prioritization scams. The public has spoken. Lawmakers who stick their heads in the sand on this issue will pay the price at the polls. We will fight lobbyists’ attacks on net neutrality every step of the way, and in the end, the Internet will win.”