- The Republican Senate’s passage Wednesday of a measure that would reinstate the Federal Communications Commission’s net-neutrality rules is a strong indication that support for those regulations is gaining steam.
- Net neutrality started as an obscure policy debate, but it has become a mainstream issue, and the more people know about it, the more they support it, regardless of their political identification.
- That support means that even if the Senate’s resolution ultimately dies in the House of Representatives or on President Donald Trump’s desk, the net-neutrality rules will be reinstated, one way or another.
The resolution the Senate passed Wednesday that would reinstate the Federal Communications Commission’s net-neutrality rules may ultimately go nowhere.
But this issue isn’t going away.
And one day, most likely in the not-too-distant future, net-neutrality protections will be the law of the land again – this time for good.
Support for the open-internet rules has only grown over time, both among the public and in the Beltway. And the more people know about the rules and what purpose they serve, the more they like and back them, no matter which side of the political aisle they’re on.
“People from across the political spectrum, from the far left to the far right, can all agree: They don’t want their cable company to control where they get their news and information, how they listen to music, or where they can stream videos,” said Evan Greer, the deputy director of Fight for the Future, an internet activist group that pushed hard for the Senate resolution.
Because of that, the FCC’s vote in December to get rid of its rules may eventually be seen as the last gasp of the anti-regulatory guard.
Net neutrality is relatively new but is rooted in long-standing laws
To understand why a reinstatement of the net-neutrality rules is beginning to seem inevitable, you have to understand a bit about what they are and their past history.
At its core, net neutrality is the principle that all data, sites, and services on the internet should be treated the same. Users should be able to access whichever site or service they’d like without an internet provider blocking them or getting in their way – or promoting its own sites and services to the detriment of others. That makes sense to many people, because the conceptual framework underlying net neutrality is rooted in long-standing traditions, rules, and laws about how we treat companies that offer their services to the general public, particularly telecommunications firms.
Still, the term “net neutrality” is relatively new, being coined only in 2003. And for much of the time since then, it was something that, arguably, only computer geeks and policy wonks understood or were passionate about.
Even so, as early as 2004, Michael Powell, the chairman of the Federal Communications Commission at the time, gave his stamp of approval to an early iteration of net neutrality. Since then, the FCC – under first a Republican and then a Democratic president – made three attempts to put in place rules that would guarantee net-neutrality protections.
The agency’s first two efforts were overturned by a federal appeals court on the grounds that the FCC didn’t ground them in its legitimate powers or authorities. So in 2015 the agency took another stab, basing its latest version of its net-neutrality rules in some of the strongest powers it has – a move that was later upheld by the same appeals court.
The FCC could have walked away from net neutrality numerous times, most notably after either of its court setbacks. The fact it didn’t says a lot about how the issue went from being an obscure policy debate to a mainstream issue.
Public support for net neutrality has been building
Indeed, the tide in favour of net neutrality can be seen in public engagement on the issue. In 2014, when the agency was considering a new version of the rules in response to the second court ruling against it, it received millions of comments from the public, making the issue by far the most commented-upon matter the agency had ever considered by that time. The vast majority of those comments were in favour of the agency putting in place strong new net-neutrality rules.
Last year, as the agency was considering its repeal of those rules, it received even more comments. All kinds of questions have been raised about the legitimacy of many of those comments, but one of the most detailed studies on it indicated that the agency received millions of bona fide, unique submissions – and the vast majority were in favour of keeping the rules in place.
You can also see the evolution of the debate in public polling. Four years ago, as the FCC was mulling the latest version of its net-neutrality rules, just 46% of the public had heard of the term “net neutrality.” By the time it voted on its repeal in December, two-thirds had.
Regardless of whether people knew the term, there’s long been broad support across the political spectrum for having internet providers treat all data equally and widespread opposition to them creating so-called fast lanes for certain sites or services. And polls show support is only increasing.
In December, a poll by the University of Maryland found that 83% of Americans – including 75% of Republicans – favoured keeping the FCC’s net-neutrality rules in place. In a follow-up poll last month, the University of Maryland found that 86% of Americans favoured keeping the rules in place. While that change was within the margin of error of both polls, the increase in Republican opposition to the repeal of the net-neutrality rules went up significantly, rising to 82%.
What’s remarkable about that poll is that it gave those surveyed detailed arguments on both sides of the issue before asking them to make a final opinion about the rules. As might be expected, a majority of Republicans found the arguments for repealing them at least somewhat convincing. But they – like other groups – found the arguments for keeping the rules much more convincing.
In other words, the more people – including anti-regulatory Republicans – knew about the issue, the more they supported net-neutrality.
That’s got to worry those who want to do away with the net-neutrality rules once and for all. Because knowledge about what the principle is and what the rules seek to do is only likely to grow over time.
The FCC’s rules got stronger over time – in line with public support
But the tide in favour of net neutrality can also be seen in the evolution of the FCC’s rules. They went from being simple guidelines to being actual regulations to being rules grounded in the agency’s powers under Title II of the Communications Act, which gives it all kinds of authority to regulate telecommunications companies.
That move to embrace Title II was something policymakers on both sides of the aisle resisted fiercely. Indeed, under George Bush, the FCC was determined to get internet providers out from under Title II regulations.
When the first two versions of the net-neutrality rules were struck down by courts, neither of the chairmen of the agency at the time – Julius Genachowski and then Tom Wheeler, both Democrats – wanted to fall back on the agency’s Title II authority. In fact, in 2014, Wheeler initially appeared willing to allow broadband providers to create so-called fast lanes – a move that would undermine net neutrality – just so he wouldn’t have to classify internet access as a Title II service.
That position was right in line with the Beltway consensus. Republicans on the agency and in Congress, who generally oppose regulations, were dead set against reclassifying internet access as a Title II service. But so too were many congressional Democrats, who warned Wheeler against making that move.
That he ultimately reversed course and relied on Title II to ground the new rules again shows the power of this issue and the people behind it. The flood of comments in favour of the move gave him the fortitude to make the move.
The Senate resolution’s prospects are dubious, but net neutrality’s aren’t
Wednesday’s move by the Senate further shows the growing wave in favour of net neutrality. Here you had the spectacle of a Republican-dominated Senate – filled with Senators whose campaign coffers have been filled with cash from the telecommunications giants – spurning those telecom interests and rebuking a Republican president’s hand-picked FCC chairman little more than a year into the president’s term.
The resolution drew the support of every single Democrat, including ones who just four years ago were cautioning Wheeler not to rely on Title II. It also drew the support of three Republicans at a time of fierce partisanship and when members opposing Trump know that opposition could be a career-ender. That doesn’t happen unless people know that standing against net neutrality may be an even bigger threat to their political careers.
The Senate resolution still faces long political odds. To actually stop the net-neutrality repeal from taking effect, it needs to pass the House of Representatives and be signed by the president. To date, the resolution has drawn far less than the majority support it will need in the House, and the prospects of Trump signing it and repudiating his own FCC chairman seem dim.
But that doesn’t mean it’s impossible. There’s a good chance that Democrats who haven’t yet declared their support for the measure will end up voting for it, seeing it as a political winner. And a massive number of Republicans are retiring this year, which could embolden at least some of them to support it also.
And who knows in the end what Trump will do? He often seems to side with whoever spoke with him last. Despite the antiregulatory bent of his administrations, he has expressed at least some concern in the past about the power of particular telecommunications companies. At least in theory, that could lead him to back the resolution if it ever made its way to his desk.
Regardless, though, the momentum is decidedly in favour of net neutrality. Even if this resolution dies, those protections are coming back, one way or another.
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