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Net neutrality battle heats up on Capitol Hill: What you need to know

Democrats want to bring back the Obama-era rules via the Save the Internet Act. Republicans say not so fast.

Win McNamee/Getty Images

Democrats on Capitol Hill are pushing hard to restore Obama-era net neutrality protections.  

More than a year after the Republican-led Federal Communications Commission voted to repeal the popular 2015 rules, lawmakers in Washington are duking it out to get protections in place. Democrats in the House will vote as soon as Tuesday on the Save the Internet Act, which would reinstate the regulation, which lasted from 2015 to 2018.

The bill is an attempt to end a nearly two-decade-old fight over how best to prevent broadband companies from abusing their power as gatekeepers to the internet. Specifically, it would prevent broadband providers from blocking or slowing access to the internet, or charging for faster access. But it also would restore the FCC's authority as the "cop on the beat" when it comes to policing potential broadband abuses.

Republicans have criticized the legislation as giving the FCC too much authority to regulate ISPs.

House Speaker Nancy Pelosi, Senate Majority Leader Chuck Schumer and other Democrats announce legislation to restore net neutrality protections at the US Capitol.

House Speaker Nancy Pelosi (cemter), Senate Majority Leader Chuck Schumer (to Pelosi's right) and other Democrats announce legislation to restore net neutrality protections at the US Capitol on March 6, 2019. 

Mandel Ngan / AFP/Getty Images

Democrats in Congress, who have been fighting to restore the 2015 net neutrality rules, say the repeal has opened the door for large broadband and wireless companies to "control people's online activities."

"Without the FCC acting as sheriff, it is unfortunately not surprising that big corporations have started exploring ways to change how consumers access the Internet in order to benefit their bottom line," Reps. Nancy Pelosi of California, Frank Pallone Jr. of New Jersey and Mike Doyle of Pennsylvania said in joint opinion piece on CNET.

The Democrats, who now control the House of Representatives, say their bill will restore "strong net neutrality rules."  

If you still don't feel like you understand what all the hubbub is about, have no fear.  We've assembled this FAQ to put everything in plain English.

What's net neutrality again?

Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you're checking Facebook, posting pictures to Instagram or streaming movies from Netflix or Amazon. It also means companies like AT&T, which bought Time Warner, or Comcast, which owns NBC Universal, can't favor their own content over a competitor's.

What were the original Obama-era rules?

The regulation prohibited broadband providers from blocking or slowing traffic and banned them from offering so-called fast lanes to companies willing to pay extra to reach consumers more quickly than competitors. It also established a so-called "general conduct rule" that gave the FCC power to step in when it felt ISPs were doing something that hurt competition or ultimately hurt consumers.

Why has the issue become so divisive?

To make sure the rules stood up to court challenges, the agency also put broadband in the same legal classification as the old-style telephone network, which gave the FCC more power to regulate it.

The stricter definition provoked a backlash from Republicans, who said the move was clumsy and blunt. They claim the Democrats' bill to restore the rules will give the FCC too much authority to regulate ISPs.

FCC Chairman Ajit Pai, appointed by President Donald Trump, called the old rules "heavy handed" and "a mistake." He's also argued the rules deterred innovation because internet service providers had little incentive to improve the broadband network infrastructure. (You can read Pai's op-ed on CNET here.) Pai claims he took the FCC back to a "light" regulatory approach, pleasing both Republicans and internet service providers.

Supporters of net neutrality say the internet as we know it may not exist much longer without the protections. Big tech companies, such as Google and Facebook, and internet luminaries, including Tim Berners-Lee, fall in that camp.

Were the 2015 rules ever challenged in court?

As a matter of fact, they were. AT&T as well as a couple of industry groups sued the government, arguing the FCC didn't have the authority to reclassify broadband. But in 2016, the DC Circuit Court of Appeals upheld the rules, dealing the FCC a significant victory. The ruling made it clear the FCC could regulate broadband. AT&T tried to appeal the decision to the US Supreme Court. And Trump's Department of Justice urged the court to take the case. But ultimately, the high court rejected the appeal. And that 2016 ruling stands.

What happened to the 2015 rules?

The FCC, led by Pai, voted on Dec. 14, 2017, to repeal the 2015 net neutrality regulations. On June 11, 2018, the rules officially came off the books. As a consequence, today there aren't rules that prevent broadband providers from slowing or blocking your access to the internet. And there's nothing to stop these companies from favoring their own services over a competitor's.

One of the most significant changes that's often overlooked is that the FCC's "Restoring Internet Freedom" order also stripped away the FCC's authority to regulate broadband, handing it to the Federal Trade Commission.

Does this mean no one is policing the internet?

The FTC is the new cop on the beat. It can take action against companies that violate contracts with consumers or that participate in anticompetitive and fraudulent activity. But critics, which include consumer advocates and Democrats such as Rep. Mike Doyle of Pennsylvania, complain the FTC doesn't have the technical expertise to handle net neutrality complaints.  They also claim the FTC lacks the FCC's rule-making authority and it can take years to investigate complaints.

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Are any of the old rules still in place?

The one rule that was spared is the so-called "transparency rule," which requires broadband providers to disclose how they manage their networks. The FCC now requires service providers to commit to disclosing when and under what circumstances they block or slow traffic, as well as if and when they offer paid priority services.

What about the FCC's comment system? I've heard there were issues. What's that all about?

More than 22 million comments were filed with the FCC when the agency was considering repealing the 2015 rules. That was a record. But analysis of the comments showed that an overwhelming number of them were duplicates or submitted by automated bots. Roughly 2 million of the 22 million comments submitted used stolen identities. About half a million were sent from Russian email addresses.

Then there was the controversy over a supposed cyberattack on the comment system that temporarily shut down the platform on the same day thousands of net neutrality supporters responded to comedian John Oliver's call to flood the agency with comments.

That "cyberattack" didn't happen. The FCC's inspector general reported in August last year that the FCC had misled Congress and the public when it said the outage in May 2017 was the result of a cyberattack. Instead, the IG suggested the outage occurred because the agency hadn't prepared its website for a flood of visitors.

What are the states doing?

Attorneys general in 22 states and the District of Columbia have joined pro net neutrality consumer groups and Firefox publisher Mozilla in suing the FCC in federal court to reverse the FCC's move.

There are also a number of states, such as California and Washington, that have passed their own laws governing an open internet. Several other states, including New York, are considering similar legislation.

California's law is based on the 2015 protections, but it goes further. It also outlaws some zero-rating offers, such as AT&T's, which exempts its own streaming services from its wireless customers' data caps. The law also applies the net neutrality rules to so-called "interconnection" deals between network operators, something the FCC's 2015 rules didn't explicitly do.

The FCC and Department of Justice have questioned the states' right to enact their own net neutrality laws.The FCC actually included a provision in the "Restoring Internet Freedom" order, which pre-empts states from creating their own regulations. The DOJ has filed lawsuits against some states, including California.

017-nyc-net-neutrality-protest-verizon-hq-dec-7-2017
Sarah Tew/CNET

What happened to California's net neutrality law?

The new law was supposed to take effect Jan. 1. But last fall, the state struck a deal with the DOJ to temporarily not enforce the new law until a lawsuit challenging the FCC's repeal of the federal regulations is resolved.

What's it all mean for me?

The repeal of the FCC's net neutrality rules was a big change in policy. But for most people, things haven't really changed.

Over time, though, they could. Whether you think the changes will be for better or worse depends on whom you believe.

Pai and many Republicans say freeing up broadband providers from onerous and outdated regulation will let them invest more in their networks.

Net neutrality supporters, including Democrats like Rep. Mike Doyle of Penssylvania and Sen. Ed Markey of Massachusetts, consumer advocacy groups, civil rights organizations and technology companies like Google and Mozilla say that repealing the 2015 rules and stripping the FCC of its authority will lead to broadband companies controlling more of your internet experience. This may lead to higher prices. 

What's going on with the lawsuits?

The US Federal Appeals Court for the DC Circuit in February heard oral arguments in the case challenging the FCC's repeal of the 2015 rules.

Two of the big questions being asked in this lawsuit are whether the FCC had sufficient reason to change the classification of broadband so soon after the 2015 rules were adopted and whether the agency has the right to pre-empt states, like California, from adopting their own net neutrality laws.

As mentioned, California struck a deal with the DOJ in October that it wouldn't enforce its net neutrality law until the lawsuit in the DC Circuit, challenging the agency's repeal, is resolved.

A decision in the case is expected sometime this summer.

What is Congress doing?

Democrats and Republicans agree Congress should ultimately step in to end the regulatory ping-ponging that has been going on between Democrats and Republicans when they control the commission.

But that's where the agreement ends. Democrats in the House are pushing the Save the Internet Act, which would essentially reinstate the 2015 order and once again make the FCC the agency in charge of policing broadband.

Republicans oppose the bill, saying they are still worried that the FCC will have too much control over the internet. And they're pushing for a bipartisan compromise.

The Save the Internet Act is likely to pass the Democratic-controlled House. But it will still have an uphill battle in the Senate, which is controlled by Republicans. That said, Democrats were able to pass a Congressional Review Act resolution in the Senate last year that would've repealed the FCC's order to dismantle the 2015 rules. But it's unlikely any Republicans will defect again to pass this legislation.

If it passes both houses of Congress, it still has to be signed into law by Trump. And White House advisors have already said they are advising the president to veto it

First published April 23, 2018 5 a.m. PT.
Correction, 11:33 a.m.:
The headline and the story have been changed to reflect that key parts of the order to repeal net neutrality rules don't go into effect until after the Office of Management and Budget gives its approval.
Updates, May 16 at 1:22 p.m.:
Includes information on the Senate action on the Congressional Review Act; June 9 at 5 a.m.: Adds background and reflects the June 11 end date of the Obama-era net neutrality rules; June 11 at 5:15 a.m.: To note that the roll back has officially gone into effect; Aug. 9 at 1:01 p.m.:  Adds information on the FCC IG's report concerning a May 2017 outage of the agency's website; Nov. 6 at 12:03 p.m.: Adds information about the lawsuits against the FCC and updates about the FCC's comment record; Dec. 14 at 12:50 p.m.: Adds information about the CRA effort and the anniversary of the FCC's vote to repeal. 3:13 p.m.: Adds comment and link to joint op-ed from Democratic House leaders, Reps. Nancy Pelosi, Frank Pallone, Jr., and Mike Doyle. April 9, 2019 at 5:00 a.m.: Adds information about the "Save the Internet Act" effort in the House.