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Senate votes to save net neutrality: Here's what you need to know

Maneuvering on Capitol Hill. Protests on the web. This thing isn't over just yet.

Sarah Tew/CNET

Democrats were victorious in their final stand to save net neutrality. And you can thank a few Republicans who decided to switch sides.

The clock has been ticking on net neutrality, with those rules set to expire next month. On Wednesday, the US Senate approved a resolution to turn back the Federal Communications Commission's repeal of the regulations. (You can find how to watch the coverage here.) 

Democrats are using the Congressional Review Act to try to halt the FCC's December repeal of net neutrality. The law gives Congress 60 legislative days to undo regulations imposed by a federal agency. What's needed to roll back the FCC action are simple majorities in both the House and Senate, as well as the president's signature. So, yes, it remains an uphill battle. 

Sen. Ed Markey, a Democrat from Massachusetts who's leading the fight in the Senate to preserve the rules, last week filed a so-called discharge petition, a key step in this legislative effort.

Sen. Ed Markey speaks during a news conference on a petition to force a vote on net neutrality on Capitol Hill. Also pictured are senators Maria Cantwell, Tina Smith and Richard Blumenthal.

Sen. Ed Markey speaks during a news conference on a petition to force a vote on net neutrality on Capitol Hill. Also pictured are senators Maria Cantwell, Tina Smith and Richard Blumenthal. All four are Democrats.

Zach Gibson / Getty Images

The net neutrality rules, passed in 2015 under President Barack Obama, prevent broadband and wireless companies from blocking or slowing internet traffic. The rules have become highly politicized, with Democrats in Congress and many internet companies, such as Google and Facebook, strongly voicing their support. A majority of the public supports net neutrality as well.

Meanwhile, Republican lawmakers and broadband lobbyists argue the existing rules hurt investment and will stifle innovation. They say efforts by Democrats to stop the FCC's repeal of the rules do nothing to protect consumers.

All 49 Democrats in the Senate support the effort to undo the FCC's vote. One Republican, Sen. Susan Collins of Maine, also supports the measure. One more Republican is needed to cross party lines to pass it.

Republican lawmakers and broadband lobbyists said the Democrats' efforts do nothing to protect consumers.  Sen. John Thune, a Republican from South Dakota, said in an op-ed on CNBC last week that he supports net neutrality, but that Democrats have "manufactured a controversy" and created "political theater" with the CRA resolution vote in order to preserve outdated, monopoly-era regulations.

"If the Democrats are serious about long-term protections for consumers, they should look ahead towards a bipartisan solution," Thune wrote. "The bottom line is, Congress should be spending time on a permanent solution that is not subject to Washington power shakeups."

These sentiments were echoed by industry lobbyists.

"Supporting the CRA will not protect the open and vibrant internet we all want and consumers expect," Jonathan Spalter, president and CEO of USTelecom, said in a statement. "To ensure safeguards and real net neutrality, America's online consumers need Congress to come together and craft modern rules to end this debate once and for all."

Meanwhile, the FCC has declared that the 2015 net neutrality rules will finally come to an end on June 11.

What exactly is the CRA and what does it mean for the movement to preserve net neutrality? We break it down for you in this FAQ. 

What's the Congressional Review Act?

The CRA was passed by Congress in 1996 under President Bill Clinton. It's designed to give Congress a speedy legislative process to review and overrule a regulation adopted by a government agency. A resolution to overrule must be passed by both the House and Senate, and it must be signed by the president. There's also a time limit. It can be passed only within 60 legislative days of the enactment of the agency's regulation. These aren't calendar days. They're the days Congress is in session.

If an agency's regulation is overruled, the CRA prohibits that agency from reissuing a similar rule ever again, even if the political winds shift, "unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule."

Has the CRA been used in the past?

Prior to 2017, the CRA had been successfully invoked only once, to overturn a Department of Labor rule in 2001. In 2017, following the inauguration of President Donald Trump, the Republican-controlled Congress began passing a series of "disapproval resolutions" to roll back several Obama-era regulations.

Because the legislative session in the final year of Obama's presidency was shortened by the 2016 election, Congress was able to claw back regulations adopted as far back as May 2016. Fourteen such resolutions were passed in 2017, including one that overturned rules the FCC had adopted in October 2016 that protected online consumer privacy.

How could the CRA be used to preserve net neutrality?

The Republican-led FCC voted to repeal the 2015 rules in December 2017.  Once the change was posted in the Federal Register in February, Democrats in the House and Senate were able to start mobilizing to pass a resolution of disapproval under the CRA.

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The measure has a better chance of passing in the Senate, where all 49 Democrats support the effort, as does Collins, a Republican. Because the resolution has to pass with only a simple majority, just one more Republican is needed in the Senate. Then things can move onto the House for a vote. From there the president must sign the resolution to overturn the repeal. Without his signature, the CRA resolution fails.

What's happening now? How does this process work?

While most legislation or resolutions need to pass through a committee before they're voted on in the full Senate, the CRA allows 30 senators to bypass this process and force a vote of the entire Senate 20 days after the rules have been published in the Federal Register. That's what Markey and his senate colleagues did on May 9. He's officially "discharged the petition" and bypassed the committee process to schedule a vote in the Senate. The vote is scheduled for Wednesday, May 16.

Say the resolution makes it out of the Senate -- is there enough support in the House for it to pass there?

So far, it doesn't appear there's enough support. As in the Senate, a simple majority is all that's required in the House to pass the resolution, which means 216 votes are needed. Given that there are 236 Republicans in the House and only 193 Democrats, it seems unlikely the resolution will pass both houses of Congress.

While advocates emphasize that net neutrality is not a partisan issue and that many Republican voters actually support the 2015 rues, the reality is a large number of Republican lawmakers are unlikely to break with their party to use the CRA to keep the Obama-era rules. It's also not clear if every Democrat in the House will vote for the resolution. Rep. Mike Doyle, a Democrat from Pennsylvania who's leading the effort in the House, has only 160 co-sponsors for his CRA resolution.

Let's say that by some miracle it passes the House, too. What are the chances Trump will sign it?

The odds of Trump signing the resolution are slim. It's hard to say for sure what the president thinks about net neutrality or if he's given it much thought at all, since it's not a topic he's tweeted about since taking office. But given that Trump appointed Ajit Pai, the FCC chairman leading the charge to dismantle the rules, it's probably safe to assume he wouldn't overturn a measure his own guy adopted.

Still, Trump has proven to be unpredictable, so you never know.

Why are Democrats even bothering if the effort seems unlikely to actually overturn the FCC's repeal of the rules?

The short answer: politics. Democrats want to make net neutrality an issue in the midterm election campaigns.

Their plan is to force vulnerable Republican candidates to stand with their party and adopt a position that many polls show is unpopular among most Americans.

Sen. Brian Schatz, a Democrat from Hawaii, said it's important to get every lawmaker on the record to see where they stand on this issue. 

"A lot of people say they are for net neutrality," Schatz said in an interview on Tuesday before the vote. "But when you talk about specific legislation that will protect those principles, they get marbles in their mouths. We are forcing an up or down vote to guarantee a free and open internet. There's nowhere to hide."

Is there any other hope for keeping the 2015 rules in place?

Several tech companies, like Vimeo, Mozilla, Kickstarter, Foursquare and Etsy, as well as 22 state attorneys general, have already filed lawsuits to preserve net neutrality protections.

There are also more than two dozen states, including California and New York, considering legislation to reinstate the rules within their borders. Earlier this year, Washington became the first state to sign such legislation into law. Governors in several other states, including New Jersey and Montana, have signed executive orders requiring ISPs that do business with the state to adhere to net neutrality principles.

There's also the hope that Congress can come together and pass legislation to protect net neutrality. The debate over net neutrality and whether and how to regulate the internet has been going on for nearly two decades. Lawmakers on both sides of this issue say it's time to enact a law to protect net neutrality. Of course, they don't agree on what those rules should look like.

But strong support in the House and Senate for the existing 2015 rules, even if the CRA measure fails, could send a message to lawmakers about what this permanent fix should look like.

First published May 9 at 5:00 a.m. PT.
Updated 12:35 p.m. PT: Added that the Democrats' CRA resolution was officially "discharged," plus new comments.
Updated May 10 at 8:22 a.m. PT: Added the FCC's declaration that the net neutrality rules end on June 11.
Updated May 16 at 5:00 a.m. PT: Added information tied to the May 16 Senate vote.

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