While the new-look Federal Communications Commission is well on its way to undoing its own, relatively new, net neutrality rules that prevent companies like Verizon, Comcast, and AT&T from determining what you see and do online, lawmakers in the Senate have introduced legislation that would not only roll these rules back but also prevent the FCC from ever trying anything similar.
The hilariously named “Restoring Internet Freedom Act” [PDF] was introduced by Sen. Mike Lee (UT) earlier this week, and its long title — “A bill to prohibit the Federal Communications Commission from reclassifying broadband Internet access service as a telecommunications service and from imposing certain regulations on providers of such service” — is almost as long as the full text of the bill.
Lee’s legislation, does the very thing that Verizon and Comcast and have claimed they don’t want: slaughters net neutrality, and puts its head on a spike as a warning to future regulators.
The bill, if passed, would mandate that the entire 2015 Open Internet Order shall have “no force or effect,” so it not only undoes the reclassification of broadband as a more regulated “common carrier,” it gets rid of all the good stuff that the telecom industry now pretends it really wanted all along, like the rules that prevent ISPs from blocking, throttling, or prioritizing access to online content.
It doesn’t stop there. Heaven forbid a future FCC might want to do anything similar to what’s in the 2015 order, because this bill would bar the Commission from “issu[ing] a new rule that is substantially the same” unless Congress writes yet another law explicitly allowing that rule.
The problem is, supporters of the rules argue that Congress did write a law that allows the FCC to enact the neutrality rules. It’s called the Communications Act, and a federal appeals court has already ruled that the neutrality rules are allowed by law. In fact, just yesterday the D.C. Circuit Court of Appeals denied the telecom industry’s petition for a rehearing before the full court.
If this scorched earth approach to deregulation sounds familiar, that’s because it’s been used a lot in the last few months, like when Congress stripped the FCC of its ability to regulate privacy policies of internet service providers.
There are a couple of important differences here. The privacy rollback — and about a dozen other regulatory reversals — were achieved via the Congressional Review Act, a law that allows lawmakers to review and undo recently finalized federal regulations. The CRA only requires a simple majority in the Senate, so Republicans were able to use their slim majority there to undo several regulations finalized during the last months of the previous administration.
But while this new bill is written and structured in a way that’s virtually identical to a CRA resolution, it’s not one. The Open Internet Order is two years old, putting it far outside the time window for the CRA. That means it would require at least 60 votes to make it out of the Senate. Additionally, successful CRA resolutions can not be challenged in the court system, whereas this bill, if passed, would not be exempt from judicial review.
So it seems like the FCC’s regulatory rigmarole — Chairman Pai pretending to ask the public for input, drafting rules, taking votes — still appears the most likely demise for net neutrality. This is the way the open internet ends, not with a bill but with a notice of proposed rulemaking.