The Affordable Care Act isn’t the only Obama-era regulation Republicans aim to repeal and replace. Net neutrality, which Senator Ted Cruz (R-TX) once famously called “Obamacare for the internet,” is on the agenda as well.
The Federal Communications Commission is well on its way towards repealing its existing net neutrality rules, which ban internet service providers from blocking legal content, slowing down specific connections, or charging tolls for so-called “fast lanes” on the internet. But the “replace” half will fall to Congress. And that’s going to be much harder.
This week House Committee on Energy and Commerce chair Greg Walden (R-OR) reportedly sent letters asking several companies to testify before Congress about net neutrality on September 7 of this year. Walden invited broadband internet providers like Verizon and Comcast as well as content companies like Facebook to share their ideas about how Congress should go about replacing the FCC’s rules. But it will take more than just a hearing on Capitol Hill to work out a compromise.
The FCC passed the first version of its Open Internet Order, designed to protect net neutrality, in 2010. The agency was almost immediately sued by Verizon, which argued that the agency didn’t have the authority to enforce its rules. A federal court agreed, ruling that the FCC would need to reclassify internet service providers as “Title II common carriers” if it wanted to impose its regulations. The agency did just that as part of its expanded version of the Open Internet Order early in 2015, following a massive push from net neutrality advocates.
Now that the FCC’s Republican commissioners are in the majority at the agency, they’re working to overturn at least parts of the Open Internet Order. The Republicans have the votes to pass their agenda, and because they’re not directly elected they don’t have to worry much about the public outcry in support of net neutrality. But even if the FCC wins the court battle that will likely ensue, it’s not the end of the net neutrality debate.
One of the few things that both Democratic and Republican voters agree on, according to recent polls, is that net neutrality should be protected. Even Verizon and other internet service providers now say they’re fine with the idea of rules banning blocking and throttling content, but say that classifying them as common carriers was a step too far. Instead, they say that Congress should pass a bill that would enshrine net neutrality into law without requiring common carrier status for broadband providers.
There are a few ways to do this. One would be for Congress to give the FCC explicit permission to impose net neutrality rules without resorting to Title II classification. Another would be to assign responsibility to the Federal Trade Commission, instead of the FCC.
The problem is that Democrats and net neutrality advocates don’t like either option. Reclassifying broadband providers as common carriers gave the FCC the authority to do much more than just stop internet service providers from blocking content. It also allowed the agency to police obscure but important agreements between internet service providers, subsidize internet access for the poor, and push for more competition between broadband providers.
The other big question is what exactly net neutrality does or doesn’t cover. Many companies now exempt certain sites or services from customers’ data limits. Internet providers claim this idea—known as “zero rating“—is good for customers, but net neutrality advocates worry that they can be used to give carriers’ own products an unfair advantage over the competition. The Open Internet Order outright banned the practice, but it did give the FCC the ability to police these exemptions on a case-by-case basis. Broadband providers will likely balk at any bill that tries to regulate zero rating, while activists will push back against anything that doesn’t rein it in.
Earlier this month Senator Ron Wyden (D-OR), a longtime net neutrality advocate, told WIRED that he would only support a net neutrality bill that provided the same level of consumer protection that the FCC’s current regulations do. He also dismissed the idea that the FTC could enforce such rules. “This is not their beat, their beat is not communications,” Wyden said, echoing similar concerns from activists.
Republicans could pass a bill without support from Democrats, but only if they can draft a bill that they all support. But just like replacing Obamacare, that’s not as easy as it sounds.
Although Walden and Senator John Thune (R-SD) have both called for Congress to pass net neutrality rules, other Republicans, including President Donald Trump, have vocally opposed the very notion of net neutrality. For example, during Senate oversight hearing earlier this year, Cruz reiterated his opposition to net neutrality, and Senator Ron Johnson (R-WI) compared the regulations to forcing people to allow neighbors to trample their lawns.
Recent history suggests it will be hard for Republicans to reach an agreement on internet policy. Last March, Congress voted along party lines to repeal the FCC’s internet privacy rules, which banned broadband providers from selling their customers’ browsing history without getting explicit permission first. Congressional Republicans generally claimed that they were opposed to FCC overreach, not internet privacy rules in general, just as Walden, Thune, and the broadband industry argue now that they are opposed to Title II classification, not net neutrality in and of itself.
Months later, Republicans have yet to replace the internet privacy rules. Representative Marsha Blackburn (R-TN) proposed a bill last May that attracted a few co-sponsors, but it hasn’t gotten much traction.
It’s always easier to tear something down than to build something new in its place.