With rules repealed, what’s next for net neutrality?

The battle over the Federal Communications Commission’s (FCC) repeal of net neutrality rules is entering a new phase, with opponents of the move launching efforts to preserve the Obama-era consumer protections.

The net neutrality rules had required internet service providers to treat all web traffic equally. Republicans on the commission decried the regulatory structure as a gross overreach, and quickly moved to reverse them once the Trump administration came to power. 

The reversal of the rules was published in the Federal Register Thursday, and even though the order is months away from implementation, net neutrality supporters are now free to mount legal challenges to the action. 

A coalition of Democratic state attorneys general, public interest groups and internet companies have vowed to fight in the courts. Twenty-three states, led by New York and its attorney general, Eric Schneiderman (D), have already filed a lawsuit. 

“An open internet, and the free exchange of ideas it allows, is critical to our democratic process. Repealing net neutrality will allow internet service providers to put corporate profits over consumers by controlling what we see, do, and say online,” Schneiderman said in a statement. “Consumers and businesses in New York and across the country have the right to a free and open internet, and our coalition of Attorneys General won’t stop fighting to protect that right.”

The emerging court battle over net neutrality could keep the issue in limbo for years.

Meanwhile, a separate battle over the rules is brewing in Congress.

Senate Democrats have secured enough support to force a vote on a bill that would undo the FCC’s December vote and leave the net neutrality rules in place. 

The bill, which is being pushed by Sen. Ed Markey (D-Mass.), would use a legislative tool called the Congressional Review Act (CRA) to roll back the FCC’s repeal of net neutrality. 

The entry of the FCC’s repeal order in the Federal Register Thursday means that the Senate has 60 legislative days to move on the CRA bill. Democrats have secured support from one Republican, Sen. Susan Collins (Maine), and need just one more to cross the aisle for the bill to pass the chamber. 

“The internet doesn’t belong to big internet service providers and special interests who want to turn it into a toll road where consumers will pay more while the biggest corporations get to ride in the fast lane,” Markey said in a statement Thursday. 

“With only 60 legislative days to find one more vote, I call on my Republican colleagues to join us and the vast majority of Americans who want the internet to remain free and open and a level playing field for everyone.” 

Even if Democrats do manage to find the tie-breaking vote in the Senate, the bill is almost certain to die in the House. But Democrats see a roll call vote as an opportunity to make GOP members stake out a position on an issue that they think could resonate in the midterm elections. 

On yet another front, Democratic states around the country have already launched their own attack on the FCC’s rules. Five governors (from Montana, Hawaii, New Jersey, Vermont and New York) have in recent weeks signed executive orders forbidding their states from doing business with internet service providers who violate net neutrality principles. 

And, according to the pro-net neutrality group Free Press, legislatures in 26 states are weighing bills that would codify their own open internet protections. 

The local efforts could ignite a separate legal battle over whether states have the authority to counteract the FCC’s order, which included a provision preempting them from replacing the rules.

For their part, Republicans who applauded the FCC repeal are calling for a legislation that would codify some net neutrality principles. They say doing so would allow for less heavy-handed protections that provide certainty to businesses.

But most net neutrality supporters reject that course, at least while the repeal is tied up in court and Republicans control majorities in both the House and Senate. They argue that such a bill would amount to little more than watered-down protections that would be unable to keep internet service providers in check. 

For now, Democrats seem content to let the battles in the courts and Congress play out.

“Net neutrality protections ushered in a new era of creativity, civic engagement, and innovation,” said Raffi Krikorian, the Democratic National Committee’s chief technology officer. “The FCC’s new rules will roll back years of progress and could leave American families with fewer choices and higher costs.” 

Krikorian added, “Over the next 60 days and beyond, we will keep fighting to protect the free and open internet that is so critical to our democracy.”