Net neutrality — the broad concept that all internet traffic should be treated equally, and that ISPs and other telecom players shouldn’t be able to charge more (or less) for access to certain online sites and services — was supposed to be dead. FCC chairman Ajit Pai, the once and future Verizon lawyer, successfully led efforts to roll back the Obama-era Open Internet Order. Net neutrality (or, as we’ve been unsuccessfully trying to make this all seem less boring, calling it “open internet”) was dead.
Or is it? You may have been seeing headlines that Senate Democrats are mounting a last-minute defense of net neutrality, or that 22 attorneys general have filed a lawsuit against the FCC. Both of these things are true; it’s just that the two efforts have much different chances of succeeding. Let’s take them one at a time.
The Legislative Challenge
What’s Happening: Senate Democrats (and one Republican, Senator Susan Collins of Maine) have said for a while that they would all vote to overturn the FCC’s December ruling. But that number was always more symbolic than anything else — with the Democrats only holding 48 seats, even Collins stepping across the aisle didn’t mean much.
Then Democrat Doug Jones got elected, meaning the Democrats hold 49 seats, and people started paying more attention. Assuming Collins doesn’t change her vote (and it appears likely that she wouldn’t), there currently looks to be a 50-50 split within the Senate on net-neutrality repeal.
What Will Happen: Crack open any middle-school civics textbook and you know one of the few real powers of the vice-presidency is to break ties in the Senate, and Vice-President Pence would absolutely side with the majority of Republicans in upholding the repeal of net neutrality.
But, let’s say that the pro-net-neutrality forces in the Senate can find one more vote (though it’s unclear where that vote would come from), making Pence’s tiebreaker vote a moot point.
Then you get into the heart of the problem, which is that the mechanism being used here is a relatively obscure one known as the Congressional Review Act, put into place in 1994 after Republicans swept into office. It allowed for any piece of legislation passed by the executive branch (and the FCC falls under the executive branch) to be overturned — but it has to be overturned by both the Senate and House within 60 days of passage.
If pro-net-neutrality forces within the Senate appear within spitting distance of getting the votes they need, the same is not true in the House. Democratic Pennsylvania congressman Mike Doyle has been leading that fight in the House, and so far has rounded up 82 co-sponsors for a bill nearly identical to the one in the Senate. You need 218 votes to pass any piece of legislation within the House, so Doyle needs to find 136 other votes in a heavily Republican House. It’s unlikely in the extreme.
But let’s assume there’s some sort of Mr. Smith Goes to Washington–type moment and the House suddenly has a massive change of heart and votes to overturn the FCC’s decision. Then you enter the final problem of the legislative move: the presidential veto. President Trump appointed Pai to the FCC, has spoken out in support of repealing net neutrality, and really appears to love signing nearly anything that passes his desk. If he was asked to veto a bill overturning the FCC’s decision in December, he would happily do so.
Odds on Anything Actually Happening From All of This: If you put a snowball into a hat, it can survive for up to ten seconds in hell. In the end, this is a political move by Democrats to hang a deeply unpopular piece of legislation on the necks of Republicans in hopes of gaining seats in 2018 and 2020.
The Legal Challenge
What’s Happening: On Tuesday, 22 attorneys general filed a lawsuit seeking the repeal of the FCC’s December decision, led by New York State Attorney General Eric Schneiderman (who has a history of being pro–net neutrality). The 11-page motion calls the FCC’s decision an “arbitrary, capricious” violation of the Administrative Procedure Act, a 1946 piece of legislation that governs how federal administrative bodies can pass new regulation.
The motion seeks to place the lawsuit within the U.S. District Court. There’s a reason the attorneys general would like to have the lawsuit heard in the D.C. Circuit Court; it was the D.C. Circuit 2015 ruling in the U.S. Telecom Association v. FCC that put much of the Open Internet Order statutes into place (and are what the current FCC is seeking to repeal), and it was the D.C. Circuit again in 2017 that upheld the legality of federal rules protecting net neutrality.
Four other lawsuits, from groups ranging from Mozilla to liberal think tank the Open Technology Institute, have also been filed.
What Will Happen: This is essentially a jump ball, both in that it’s entirely unclear where the cases will end up being tried, and that this is all very early days. The FCC hasn’t responded to the suits except to say that part of its order from December was that no legal challenges to the law could be made until its new regulations were placed on the federal register — something that won’t happen for days or possibly even weeks.
When informed about the FCC comments, A.G. Schneiderman’s press secretary Amy Spitalnick had this to say: “The laws governing this process create some ambiguity about the deadline, which could have allowed the FCC or a court to say that anyone who didn’t file yesterday missed their chance. Net neutrality is too important to the public for us to take that risk. If yesterday’s filing is deemed to have been early, it simply means we’ll refile our petition in the coming days or weeks. Either way, we are taking the FCC to court to challenge its illegal rollback of net neutrality.”
Odds on Anything Actually Happening From All of This: The legal challenges being mounted by 22 attorneys general is the most likely to have a real chance of succeeding. What to watch for is what court the lawsuits actually end up in. If New York Attorney General Eric Schneiderman and his co-plaintiffs get their way and the case ends up in the D.C. Circuit, then there’s reason for real optimism. The makeup of the court hasn’t changed since 2015 or 2017, and both times the court found in favor of the basic tenets of net neutrality.