Published November 26, 2017 / Updated August 6, 2020
How Congress Can Defend Net Neutrality
It’s one thing to tell Congress to defend the net; it’s another to tell them how to do it.
There’s a storm brewing on the internet. As FCC Chairman Ajit Pai moves forward with a plan to roll back regulations demanding a neutral internet those who care most about the issue are screaming for Congress to stop him. While Net Neutrality may very well be the defining free speech and anti-trust issue of our day this article is not about that.
It is about turning that screaming into a coherent set of demands.
The FCC wants to end Net Neutrality; what can Congress do about it?
The FCC is, after all, a part of the executive branch; Chairman Pai does not take orders from Paul Ryan or Mitch McConnell. The rules that Pai is set to repeal are not acts of Congress. They’re just rules — ways some bureaucrats have decided to implement the mandates handed down to them by Congress and the President. The legislators the American People have to represent them are very far removed from the process unfolding in Washington. And yet there are things they can do.
Tell Pai (and others) To Back Off
Absurd as this sounds, it’s a real path forward. Ajit Pai is, after all, a political appointee. The FCC is set up with a partisan balance for a reason and that reason is political sensitivity. If enough Congresspeople, especially Republicans, go to Pai or the other Republicans on the FCC (Clyburn & O’Rielly) and privately and tell him/them they’re worried about what a Net Neutrality repeal will mean for in 2018, Pai can decide to delay the vote, perhaps indefinitely. Of all the options available, this is the most likely to succeed though also the least final. No one in Congress needs to take a stand against the White House or come out in favor of a neutral net to make this work.
Publicly Back Net Neutrality
Of course, one step better would be to publicly endorse a neutral internet. This has the same effect as a back-channel to the FCC but with the added bonus of a public commitment. If only a few folks on the FCC know how many Representatives and Senators actually support net neutrality then it becomes pretty easy to sneak through a repeal when some fresh, new horror distracts the American people from the details of packet routing regulatory policy.
Public statements entail a bit more political risk for politicians, however. Senator Olympia Snowe is one of the first Republicans to publicly break ranks like this and while she’s being hailed as a hero by the left, Maine politics is more peculiar than most and she may yet face a primary challenger.
Repeal the Repeal
Of course, Pai doesn’t have to listen to Congress, though as a political appointee who owes his job to the Republican Party that’s probably in his best interest. Despite loud opposition from Congress he might push forward with a repeal vote anyway. If that happens, Congress could repeal the repeal of the regulations by passing a Congressional Resolution of Disapproval under the Congressional Review Act. An official resolution of disapproval would not only put the breaks on the FCC’s repeal but it would make further attempts to repeal seem like a deliberate defiance of Congress, inviting further oversight of the FCC.
Needless to say, this is a huge longshot; besides being a piece of legislation in their own right, the Disapprovals under the CRA have only been used to strike down Obama era rules. Using one on Trump’s FCC would signal a significant rift in the Republican Party.
Force Pai to Deal With Feedback
The FCC’s comment process, which is legally required under the framework Pai is using to end Title II protections, was hijacked by spammers. By nearly all accounts massive fraud happened and the FCC is refusing to deal with that or even aid in its investigation. HR 4585 would force the FCC to deal with these issues and would prevent Pai from moving forward with the repeal until a satisfactory attempt to gather comments has happened.
Legislate Net Neutrality
While we’re talking about longshots, another one is that Congress passes and the President signs a bill mandating net neutrality. This is far and away the least likely option, at least until after the 2018 midterms. If Democrats win enough seats to create leverage in at least one house of Congress, however, they could make a neutral internet a condition of some other Republican legislative priority.
Tell Congress what you think!
Net Neutrality is the critical First Amendment issue of the 21st century. Text RESIST to 50409 to tell your representatives or Senators what you think about this or any other issue before Congress. If you’d rather use Facebook Messenger, click here and say RESIST to contact your government. Finally, check here to find protests in support of Net Neutrality you can join.