A new day is dawning in Washington’s battle over the Internet.
The Federal Communications Commission will vote Thursday to issue regulations designed to guarantee equal access to the Internet, despite staunch opposition from Republicans and under the threat of lawsuits from major companies.
“We’re on the eve of a historic event at the FCC,” Rep. Frank Pallone Jr. (D-N.J.) said during a Wednesday morning hearing on the rules. “Tomorrow, the commission is set to put into place what will be the strongest Internet protections consumers have ever had.”
In order to enact those strong protections, the FCC will take the controversial step of reclassifying broadband Internet service so it can be treated similarly to a utility, like traditional phone service. For GOP critics, that’s a gross expansion of the agency’s powers that troublingly echoes a proposal advanced by President Obama, despite the FCC being an independent agency.
The vote — which is expected to fall 3-2 along party lines — will usher in the next stage of the decadelong war over rules for people’s access to the Internet.
In coming months, that new fight will play out in the court of public opinion as well as the halls of Congress and the nation’s judicial system.
Congressional Republicans have already unveiled legislation to replace the rules, and that effort is likely to continue in coming weeks, when they hope the momentum will shift back in their favor.
Lawmakers have also raised concerns about improper coordination between the White House and the FCC. Major cable companies have already said they are nearly certain to sue over the rules.
“Tomorrow’s commission vote does not signal the end of this debate,” House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) said during Wednesday’s hearing. “Rather, it is just the beginning.”
“If the FCC tries to move forward with this net nonsense, it isn’t going to stand,” pledged Rep. Joe Barton (R-Texas). “The courts won’t allow it; Congress won’t allow it.”
First up, the issue is all but certain to meet a legal challenge.
Major phone and Internet companies have long made clear their intentions to file suit, which could drag the issue through the courts for years
“To put it briefly, litigation with FCC appeals is a pretty long, drawn-out process,” National Cable and Telecommunications Association head Michael Powell said earlier this week. “I would predict that it’s at least two — and up to five — years before the rules are fully and finally settled.”
In the meantime, congressional Republicans in both chambers are pushing legislation to replace the rules. Proposals to enact some net neutrality protections reflect a major pivot for some GOP lawmakers who have long objected to any net neutrality rules, though those plans aim to scale back the FCC’s authority.
Democrats have so far balked at the Republican proposal, but GOP leaders have hoped that could change after Thursday.
“I think once the commission acts, then some [Democrats] may be freed up to be more engaged legislatively,” said Rep. Greg Walden (R-Ore.), who has helped to lead the legislative effort.
If that doesn’t work, legislators’ plan B could include cutting off some FCC funding or using the Congressional Review Act to block the regulations. House Republicans attempted a similar move in 2011 after the FCC’s first net neutrality regulations, though it was not successful.
“I think we will be taking a hard look at all of those,” Senate Commerce Committee Chairman John ThuneJohn ThuneDisconnect: Trump, GOP not on same page Seven major players in Trump's trillion infrastructure push Trump’s great tech opportunity is in spectrum sharing MORE (R-S.D.) said earlier this week. “You kind of look at what the tools are in your toolbox. Funding would be one. The Congressional Review Act would be another.”
Supporters of the legislative effort say only an act of Congress can provide the certainty needed to make the rules stick.
“I’m concerned that, if Congress does not act, all protection for network neutrality is at risk of being lost,” said former Rep. Rick Boucher (D-Va.), who unsuccessfully worked on a net neutrality bill during his time in office.
“Without statutory protection, the net neutrality guarantees can be swept away in the next presidential election,” he added, assuming a Republican wins the White House in 2016 and nominates FCC commissioners opposed to the new rules.
At the same time, Republicans have promised to keep their foot on the gas with multiple investigations probing whether the White House improperly influenced the development of the FCC’s net neutrality rules, an allegation raised in the wake of Obama’s vocal call in November for tough rules.
On Wednesday, House Oversight Committee Chairman Jason ChaffetzJason ChaffetzHow Chaffetz could get rich on K Street Oversight asks Trump for details on foreign profit donations Jason Chaffetz exploring private sector jobs: report MORE (R-Utah) criticized FCC Chairman Tom Wheeler for refusing to testify before the panel this week. The FCC has also declined to comply with its document requests. A subpoena is always an option, Chaffetz has warned.
“Chairman Wheeler and the FCC are not above Congress,” Chaffetz and Upton said in a joint statement, noting the Oversight Committee hearing would be rescheduled.
“This fight continues as the future of the Internet is at stake.”