Net neutrality supporters won a major victory this week when regulators issued the toughest Internet rules the country has ever seen, but their battle is still far from over.
New Federal Communications Commission (FCC) regulations are already coming under new scrutiny from Capitol Hill and are bound for a gauntlet of legal and legislative challenges assuring that the rules are anything but set in stone.
Even while supporters were cheering their win on Thursday, opponents of the new rules were plotting their next moves.
“In the words of F. Scott Fitzgerald, never confuse a single defeat for a final defeat,” FCC Commissioner Ajit Pai — one of the agency’s two Republicans vigorously opposed to the rules — said after Thursday’s vote.
“There are multiple battles ahead and I believe that we will win the war.”
The FCC’s tough new net neutrality rules break with the last decade of regulatory policy by treating the Internet like a public utility, a move that supporters say is the only way to ensure that major Internet providers such as Comcast or Verizon cannot obstruct people’s unfettered access to the Web.
The move came despite opposition from Republicans who have raised alarms about a government “power grab” of the Web using a decades-old law.
Those critics aren’t wasting any time.
Just a few hours after the FCC’s three Democrats voted to issue the new net neutrality rules, a group of 21 House Republicans began pushing a “fast track” vote to block the regulations.
Rep. Tom Marino (R-Pa.), one of the lawmakers pushing for the action, said that Congress should “absolutely” work to block the regulations before any other course of action.
The plan would speed a vote of disapproval through Congress using the Congressional Review Act, which would effectively block the new regulations. Republicans attempted the move after the first net neutrality proposal was approved in 2011, but it was not successful then and has almost always been fruitless.
Since the Congressional Review Act was enacted in 1996, only one set of regulations — involving ergonomics in the workplace — has ever been successfully blocked, in large part because such measures are subject to a presidential veto.
“Ok great, so we go do that,” Rep. Greg Walden (R-Ore.), who chairs a House subcommittee on technology, told C-SPAN. “We might, it is a tool in the tool chest. But that requires President Obama to sign it. So what do you think the odds are that he is going to sign the repeal of what he just forced down the FCC.”
Speaker John Boehner (R-Ohio) this week said that “Republicans will continue our efforts to stop this misguided scheme,” but his office declined to say whether he would support moving forward with the disapproval resolution.
Republicans could also seek to prohibit the FCC from directing any funding toward implementation of the rules. Advocates have said it would be “appalling” if Congress attempted to block the regulations through the appropriations process.
“People will try all kinds of things, but I’m confident the message is going to be delivered to Capitol Hill that this is a very popular thing with the American public,” Free Press president Craig Aaron said earlier this week.
GOP lawmakers are somewhat divided on the issue, however.
Instead of outright blocking the rules, Republican leaders on the House and Senate Commerce Committees are prioritizing legislation to enact many of the net neutrality principles advocates have supported, while at the same time restricting the FCC from reclassifying broadband Internet, among other legal powers.
So far, they have failed to sway any Democrats to sign onto the legislation. However, the leaders have held out hope there will be more negotiating room now that the FCC has voted.
It hasn’t materialized just yet.
“We’d always prefer exploring whether there’s room for bipartisanship, but given that the FCC took a very strong position on net neutrality, any legislation would have to be as good as the rule that just got adopted,” said Sen. Brian Schatz (D-Hawaii), the ranking member of the Senate’s subcommittee on Communications and Technology.
Obama would likely veto any legislation that did not win over Democrats. The president’s veto pen would also seem to imperil any other unilateral efforts to kill the rules by Republicans.
That has caused some net neutrality critics to look to the courts.
The reason that the agency had to write new regulations in the first place is that previous rules, written in 2010, were tossed out by a federal appeals court last January following a lawsuit from Verizon.
Industry groups are guaranteed to file suit again, but they aren’t able to until the FCC formally issues the text of the rules into the Federal Register, which could take weeks.
FCC Chairman Tom Wheeler has repeatedly said that officials crafted the rules anticipating that they would have to withstand a court challenge from the “big dogs” of the communications world.
He was optimistic on Thursday that they would withstand any challenge they meet.
When the 2010 rules were tossed out, the courts essentially told the agency: “Hey, you’re trying to impose common carrier-like regulation without stepping up and saying, ‘These are common carriers,'” Wheeler said, using the legal term for a communications utility.
The new rules, however, do just that.
“That gives me great confidence going forward,” he said.
Because the text of the rules has not yet been made public, it’s difficult to judge how well they might hold up. The prime questions will be whether or not the agency can sufficiently justify reversing the last decade of its treatment of the Web and whether it took the appropriate administrative steps to get here.
But even if the rules do survive a court challenge and Congress is unable to successfully blunt them, they may only be as permanent as the next president.
If a Republican wins the White House in 2016, the five-member FCC would become “the mirror image of what it is today,” former Rep. Rick Boucher (D-Va.) testified in the House this week.
That GOP-led commission would be “very likely” to reverse the FCC’s rules, he added, “even if that decision survives court determination.”