How Net Neutrality Can Survive the Trump Administration

After becoming president, Donald Trump installed a Republican majority at the Federal Communications Commission (FCC) that has worked furiously to roll back a long list of consumer protections established under the Obama administration, including the 2015 Open Internet Order that set net neutrality rules for internet service providers.

Net neutrality is now on life support, but it’s not dead yet.

Crucial portions of the FCC’s December decision to scrap its own net neutrality rules are still under review at the Office of Budget and Management (OMB), and the order has yet to take full effect. In the meantime, digital rights advocates and Democrats in Congress are scrambling to give net neutrality a chance to survive the reign of Trump and Ajit Pai, Trump’s pro-industry FCC commissioner.

Senate Democrats will file a petition on May 9 to force a vote on a resolution that would undo the FCC’s net neutrality repeal under the Congressional Review Act (CRA). The rules prevent internet service providers (ISPs) like AT&T and Verizon from blocking access to legal websites and playing favorites with online content to maximize profits, but Pai replaced the regulations with much weaker provisions to be enforced by the Federal Trade Commission.

If one more Republican defects or Sen. John McCain remains absent as he receives treatment for brain cancer, the Democrats will have the simple majority needed to pass the resolution.Under CRA rules, support from only 30 senators is needed to force a Senate vote on a resolution to reverse regulatory actions made by agencies like the FCC. With Republican Sen. Susan Collins of Maine, the Democrats have 50 votes in support of the resolution to restore net neutrality.

“This senate vote will be the most important moment for net neutrality since the FCC repeal,” said Evan Greer, deputy director of Fight for the Future, one of several digital rights groups planning on online day of action in support of the Democratic petition on May 9. “Now is the time to fight.”

The Senate could approve the resolution by the end of the month and faces a June 12 deadline under the CRA. If successful, the resolution faces an uphill battle in the House, where Republicans could use their powerful majority to prevent a floor vote. Even if Democrats were to find enough Republicans to pass the resolution, President Trump would likely veto it.

Still, the resolution could force lawmakers to take a position on the issue, which is exactly what Democratic leaders want. The decision to kill net neutrality rules by the GOP majority at the FCC is very unpopular among voters — including 75 percent of Republicans — and Democrats plan to hammer Republicans in the midterms for siding with Pai and the ISPs instead of consumers.

“Soon, the American people will know which side their member of Congress is on: fighting for big corporations and ISPs or defending small business owners, entrepreneurs, middle-class families, and everyday consumers,” said Senate Democratic minority leader Chuck Schumer in a statement this week.

Republicans could respond to the political pressure by pushing their own net neutrality proposals. As analysts have pointed out, Pai may have structured his repeal around the OMB review to prevent ISPs from operating in a virtually unregulated environment while Republican lawmakers craft legislation meant to ease public backlash.

Rep. Marsha Blackburn (R-Tennessee) has introduced legislation that would create a weaker net neutrality regime than what was established by the FCC. Under Blackburn’s proposal, ISPs would be barred from censoring and/or slowing online content, but they could extract lucrative fees from websites in exchange for priority loading speeds. The legislation would also preempt state and local efforts to protect net neutrality, which popped up nationwide in response to the FCC repeal.

Of course, such “paid prioritization” is not true net neutrality, and big content providers like Netflix could hand the extra costs down to their customers. Plus, Blackburn’s bill would not restore the FCC’s ability to regulate ISPs as “common carriers” and act as a powerful watchdog for consumers.

Such legislation would allow Republicans to say they support net neutrality in some for form, but voters probably won’t like the fine print. At this point, Democrats have momentum and appear unwilling to compromise.

Even if Pai’s net neutrality repeal takes full effect before Congress agrees on a legislative replacement, it still faces a number of lawsuits from digital rights groups, state attorneys general and even smaller ISPs. A court injunction could keep the Obama-era rules on the books for months or longer.

If Democrats regain control of Congress after the midterms — or enough Republicans flip on the issue — then Congress could pass legislation establishing new net neutrality rules while legal challenges wind through the courts.

A bipartisan compromise on net neutrality legislation may not have the same regulatory teeth as the 2015 rules established by the FCC, but it would prompt a showdown with President Trump, who appointed Pai as FCC chairman to carry out his sweeping deregulatory agenda.

By then, Trump would be focused on re-election, and standing up for an industry that voters clearly do not trust could cause headaches for his campaign. Republican pollsters recently found that 75 percent of Trump supporters agree with the FCC’s net neutrality rules when they understand what they are.

If Trump runs for re-election and loses to a Democrat, then the FCC majority will turn blue and a new administration could begin the process of putting the net neutrality rules back into place — if Congress has not done so already.

With all the political uncertainty and public discussion, it’s unlikely ISPs will start violating net neutrality in major ways anytime soon, but that doesn’t mean the policymakers, journalists and consumers should take their eyes off them for a minute.