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Democrats, state attorneys general fight to overturn FCC rule on net neutrality



Last month, the Republican-controlled Federal Communications Commission voted 3 to 2 to overturn a 2015 rule on net neutrality and now state and federal elected officials are working to codify what they see as the founding principle of the internet, that all traffic is created equal.

Currently, all 49 Senate Democrats and one Republican have put their support behind a resolution to restore the net neutrality rules and regulations implemented by President Barack Obama's FCC. They only need one more Republican to join them in order to overturn the December decision and trigger a broader debate on maintaining a free and open internet.

"There's an old saying: If it's not broke, don't fix it," said Massachusetts Sen. Ed Markey, the sponsor of the resolution. "The extent to which there is a problem [with the 2015 rule], it still has not been articulated in a way that is backed by evidence."

Under the 2015 rule, the FCC addressed three critical elements of net neutrality, creating "bright line" rules prohibiting content blocking, throttling users internet speeds and creating internet "fast-lanes," that some users could pay for to get content to their audience faster than a competitor.

Markey explained, that until the FCC overturned the rule in December, a small internet-based competitor or individual user had "unfettered access to the internet. The broadband company cannot discriminate against you, make you pay more, slow down your service, or bock your service in an arbitrary way."

"The intent of the amendment is to have a debate on that," he said.

In the public sphere, that debate caught fire in the months leading up to December FCC vote. One side argued that repealing net neutrality would give internet service providers unfair leverage over consumers and internet-based companies, that ISPs could block or degrade access to content, "throttle" internet speed, and charge content providers a fee (paid prioritization) to use internet "fast lanes."

On the other side, it was said that the new rule would restore the "light-touch" regulatory environment that existed before 2015, and that in turn would spur investment in new broadband infrastructure and create greater competition in a highly consolidated marketplace of internet service providers.

On the whole, support for the broad principles of a free and fair internet cut across party lines. According to one recent survey by the University of Maryland Program for Public Consultation, 83 percent of respondents were against the FCC decision to repeal net neutrality rules, and 75 percent of those polled were Republican.

Sen. Susan Collins of Maine, the sole Republican supporting the CRA resolution, said she hopes more members of her party support the CRA resolution, noting that while the Obama-era rules are not perfect, throwing them out completely is "anti-consumer."

The rule change by the Trump FCC, "would allow an internet service provider to favor certain content over others, to block certain content or slow it down," she argued. "And I don't think that's what the internet is supposed to be all about."

A Democratic supporter of the resolution noted on Thursday that the bill is "gaining momentum." But the partisan atmosphere in Washington threatens to disrupt what could be a bipartisan issue.

Sen. Markey explained, "The extent to which it was a Republican FCC that repealed those laws, I think it masks a lot of potential Republican support."

If Senate Democrats are able to pull off a vote to restore the previous net neutrality framework, it will be a short-lived victory.

According to Republican Sen. John Thune of South Dakota, the CRA resolution "is sort of a shiny object for Democrats to shoot at, but it doesn't get them a result." In other words, it may pass the Senate, but it won't pass the Republican-controlled House and it won't be signed into law by President Donald Trump.

"The best way to get a result, if you want to address the issue," Thune added, "is through legislation."

That was the approach Thune and a number of others initially proposed in 2015 when the Obama FCC was preparing its rules. Thune crafted a bill that would have banned blocking, throttling and paid prioritization. Rather than "heavy-handed and open-ended regulations that stifle the Internet," Thune argued for "permanent legislation" and "clear enduring rules."

According to one study cited by FCC chairman Rajit Pai, there is evidence that the regulations did stifle the growth of the internet during the two years it was in effect. USTelecom, a lobbying group representing the telecommunications industry, reported in October that broadband companies reduced their investment in new infrastructure by $2.4 billion between 2014 and 2016.

"Frankly, that's bad," Rep. Steve Stivers of Ohio said, noting that was the first time in the history of the internet, outside of the recession, that investment in broadband has declined.

Stivers is one of the sponsors of a bill he believes will promote infrastructure investments, preserve the principles of net neutrality and could even earn bipartisan support.

"I think our bill keeps a free and open internet that also allows for big investments in infrastructure," he explained, adding that with the old regulations, the internet "could die under its own weight the way a lot of our other infrastructure is."

The Open Internet Preservation Act, "enshrines" into law prohibitions against blocking and throttling, the congressman noted. However, it allows paid prioritization, the practice that was banned under the 2015 FCC rule.

"Paid prioritization can bring some huge benefits to consumers," Stivers argued. "It's kind of like everything else, people who want a Cadillac pay for a Cadillac, people who don't might get a Hyundai."

So far, the Open Internet Preservation Act doesn't have a single Democrat supporting it. Thune has no plans to restart a conversation with his Democratic colleagues about a legislative fix. And Markey remains one vote short in the Senate and dozens of votes short in the House.

In the likely event Congress remains locked in a stalemate, some believe the fate of the internet will be decided in the courts.

This week, 21 state attorneys general and the District of Columbia filed a lawsuit to block the FCC from rolling back the old net neutrality rules.

Led by New York Attorney General Eric Schneiderman, the suit claims the latest FCC repeal is "arbitrary, capricious, and an abuse of discretion."

Sen. Markey believes they have a strong standing in the court. He is filing an amicus brief in the suit, along with more than a dozen other Democratic lawmakers.

The FCC's reasons for overturning the Obama-era rules, Markey said, "will not, we think, stand scrutiny at the federal courts."

Roslyn Layton, an American Enterprise Institute technology policy expert who served on the Trump FCC transition team, described the lawsuit as a "political PR stunt."

She explained that while there are problems with the way the current U.S. law deals with internet service providers, the FCC is within its jurisdiction to repeal the 2015 rule. The states, however, simply don't have the authority to supersede federal regulatory authorities and "regulate the internet" themselves.

At the same time, Layton argued that the "doomsday scenario" that the states and others say will emerge as a result of the December FCC repeal vote, is not likely to occur.

"The idea that somehow there's no oversight or no enforcement [against throttling or blocking], that's nonsense," Layton said. "Now we have four cops on the beat."

Today, the Federal Communications Commission, the Federal Trade Commission, the Department of Justice and state attorneys general all have the authority to protect consumers and prevent net neutrality abuses. That includes FCC transparency requirements, FTC anti-trust protections and other measures to prevent unfair and deceptive practices.

While the side arguing to preserve the 2015 net neutrality rule has pointed to the powerful ISP lobbying interests, like Verizon, AT&T, Comcast and others, who may threaten consumers, Layton believes the argument is skewed. What the supporters of the 2015 rule have failed to point out are the powerful lobbying interests representing the companies that use the majority of internet bandwidth.

Netflix, Amazon, YouTube, Hulu, "these are the companies that use a lot of bandwidth, they take up 70 to 80 percent of all the traffic...and they don't pay a penny," she said. Instead, the costs of the heavy bandwidth users are passed on to consumers by the ISPs as they expand capacity.

"Right now Amazon pays zero, you pay 100 percent," she continued. "What net neutrality is is price control that says Amazon can only pay zero and you have to pay 100 percent."

At the beginning of the year, the Internet Association, which represents dozens of large tech companies from Amazon and Spotify to Twitter and Netflix, announced its plans to join a lawsuit against the latest FCC rule.

The association issued a statement saying it "intends to act as an intervenor in judicial action against this order" and will continue to push lawmakers for "strong, enforceable net neutrality protections through a legislative solution."

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