To: Internet rights activists
From: Access Now
RE: Status of Net Neutrality in the United States
The last several months have seen many developments regarding Net Neutrality in the United States. The focus is on Senator Kennedy right now, but anything could happen, and we all need to encourage our senators to support Net Neutrality.
In this memo, we’ll provide you updates about the many challenges and opportunities we face. As always, your support is absolutely critical to the success of our efforts, and we look forward to your continued support.
The memo will address:
- Enactment date
- Efforts in Congress
- Legal challenges
- State laws
As I hope you recall, the United States has always had Net Neutrality protections, but the legal authority for those protections has shifted over time. In 2015, the Federal Communications Committee (FCC) under Chairman Tom Wheeler clarified the rules, strengthened them, and put them on strong legal footing.
However, late last year, the FCC, now under Chairman Ajit Pai, issued a new rule that eliminated the previous rules. He eliminated the rules; stated the rules were bad for the internet; then classified the internet under a different section of law; claimed the FCC had no jurisdiction over Net Neutrality; and then also said the FCC was pre-empting states from passing their own laws.
To quote Douglas Adams, “This had made many people very angry and has been widely regarded as a bad move.”
The FCC voted on the rules last year. In general, agency rules do not go into effect until 60 days after they are published into the Federal Registrar.
The rule was officially printed on February 22, 2018. However, Chairman Pai wrote into the rules something unusual. Under federal procedure, the rules should take effect 60 days from the print date. However, the rules ALSO state that the substance of the rules will not go into effect until they are certified by the Office of Management and Budget which is an agency run by President Donald Trump’s administration.
Therefore, the White House has discretion about when the rules actually take effect. Presumably they wouldn’t do this until the 60 day clock is up on April 23, but the rules as drafted by the FCC are not in sync with traditional procedure.
The most important thing to know is that the rules have not yet taken effect.
Efforts in Congress:
Congress passed a law called the Congressional Review Act (CRA). It allows a majority in Congress to overturn an agency decision.
Democrats announced immediately after the FCC voted to overturn the rules that they would use the CRA to attempt to overturn the FCC’s rule to throw out the Net Neutrality rules. The CRA is a wonky procedure so it makes things a little complicated.
In the Senate, the CRA must be passed with 60 days after the rule is printed in the Federal Registrar. It cannot be introduced before the rule is officially published. So while the printing date of February 22 doesn’t mean anything for the implementation date for the rules, it did start the clock on the CRA challenge.
The rules for the CRA are different in the House and the Senate.
In the Senate, the CRA must be introduced and voted on in the 60 day window. That will definitely happen because the bill has enough cosponsors to force a vote. They have 50 yes votes and need one more to guarantee a win.
The most likely pick up appears to be Senator Kennedy in Louisiana. Last week, he introduced legislation that he claimed would protect Net Neutrality principles, but would allow “paid prioritization.” That means that companies that can pay a toll would go in the fast lane, while the rest of us would be stuck in older slower lanes. That’s not Net Neutrality.
After introducing this bad bill, Senator Kennedy said he was still undecided about the CRA. Our friends at Fight for the Future and Demand Progress organized protests in front of his offices and are working hard to pressure the Senator to do the right thing.
You can tell the Senator that you want him to support the CRA by visiting www.BattleForTheNet.com.
As opposed to the Senate, there is no timeline for CRA action in the House of Representatives.
A CRA can be passed at any time during this legislative session. We have 150 cosponsors in the House, but we need 218. You can also contact members of Congress at Battleforthenet.com.
We’re not going to delve into the legal strategies here, but lawyers from incredible organizations like Free Press and the Open Technology Institute are getting ready and they’re feeling confident that we have a good chance to win in the courts. Even before you get into the merits, the FCC cut corners on the rule-making procedure that make the rule susceptible to a challenge.
In addition to civil society groups, 20+ states’ Attorneys General have filed.
Despite the fact that Ajit Pai claimed that the FCC both has no authority over Net Neutrality laws and also has the authority to pre-empt the states from making their own rules about Net Neutrality, many states are pushing legislation anyway. In fact, Washington State just passed strong laws to protect internet users in that state.
You can learn more about the status of state efforts at this website: http://nrri.org/net-neutrality-tracker/
As you can see, there is a lot of action regarding Net Neutrality in the United States. We are hopeful that we can win protections for internet users. However, we can’t do it without your support. Please stick with this. It’s worth it!
Thank you for your efforts in this long fight,