Net neutrality allies are ready to fight. But can it be saved?

It's been a busy few weeks on the net neutrality battleground. Here's a refresher on where things stand.

Marguerite Reardon Former senior reporter
Marguerite Reardon started as a CNET News reporter in 2004, covering cellphone services, broadband, citywide Wi-Fi, the Net neutrality debate and the consolidation of the phone companies.
Marguerite Reardon
6 min read
Sarah Tew/CNET

The battle to save net neutrality is heating up. Senate Democrats have edged closer to overturning the Federal Communications Commission's repeal of Obama-era net neutrality regulation, and lawsuits challenging the agency have been filed.

But net neutrality supporters shouldn't hold their breath. These efforts are long shots.

Democratic Senators Introduce A Congressional Review Act Resolution To Repeal FCC's Undoing Net Neutrality

Sen. Bill Nelson of Florida is flanked by Sen. Ed Markey of Massachusetts and Sen. Tammy Duckworth of Illinois while speaking last week about the Congressional Review Act resolution that would restore the 2015 net neutrality rules,

Mark Wilson / Getty Images

On Monday, Democrats announced all 49 of their senators, and one Republican, Susan Collins of Maine, will vote on a bill that uses the Congressional Review Act to reinstate the regulation. And on Tuesday, attorneys general from 22 states, Firefox browser maker Mozilla and several public interest groups filed the first lawsuit against the FCC challenging the repeal.

Democrats say they are confident they can get the job done.

"When we force a vote on this bill, Republicans in Congress will -- for the first time -- have the opportunity to right the administration's wrong and show the American people whose side they're on: big ISPs and major corporations or consumers, entrepreneurs, and small business owners," Senate Democratic Leader Chuck Schumer said in a statement.

Watch this: Beer helps explain battle brewing over net neutrality

The efforts represent a glimmer of hope for the fate of net neutrality, which was essentially dismantled when the FCC voted last month to repeal rules adopted in 2015. Those rules had barred internet service providers from blocking or slowing down access to the internet or charging companies a fee to reach customers faster than competitors. Consumer advocates, internet companies like Facebook and Google, and nonprofits, including the New York Public Library, say an open internet is essential to free speech and innovation.

On the other side, cable operators and phone companies, like AT&T, Comcast and Verizon, say the rules went too far in treating broadband like a utility, subjecting it to decades-old regulations meant for the telephone network.

The fight has become highly partisan, with Democrats in Washington and throughout the country uniting to protect net neutrality, and free-market Republicans arguing that Obama-era FCC rules were too much.

To help you understand what all this means and whether Democrats in Congress or these lawsuits can succeed in saving the old rules, CNET has put together this FAQ.

What is 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 that companies like AT&T, which is trying to buy Time Warner, or Comcast, which owns NBC Universal, can't favor their own content over a competitor's content.

What's this debate really about?

Most people agree on the basic principles of net neutrality. What they disagree on is whether the FCC should have the authority to regulate these networks like a public utility, like the old phone network is regulated. As part of the 2015 rules, the agency changed the classification of broadband to allow it to be treated like a utility.

Net neutrality supporters and Democrats in the Senate believe that regulating the internet this way is necessary in order to have net neutrality rules that stand up to legal challenges. But broadband providers and many Republicans, like FCC Chairman Ajit Pai, see these rules as outdated. They claim the overhang of this strict regulation has caused broadband companies to pull back on investment.

But without the regulation, Dems fear, there is no legal authority for the FCC to stop broadband providers from abusing their power.

What is the Congressional Review Act and how are Democrats attempting to use it?

The Congressional Review Act is a law enacted in 1996 that allows Congress to invalidate a regulation if a majority of senators and representatives pass a "resolution of disapproval" within 60 legislative days of the order's submission to Congress. A simple majority in both houses of Congress is all that's needed, along with the signature of the president.

But there's one big catch: Once a rule is repealed, the CRA also prohibits an agency from reissuing a similar rule in the future to replace it.

Prior to 2017, the CRA had only been successfully invoked once to overturn a rule from the Department of Labor involving ergonomics. But since President Donald Trump took office in last January, the Republican-controlled Congress has passed 15 resolutions targeting rules adopted during the final month's of President Barack Obama's administration, including an FCC rule that regulated how broadband companies handle private consumer data.

What are the chances that Democrats will succeed?

It seems unlikely.

While it's true that Democrats only need one more Republican to side with them in the Senate to get to 51 votes, they still need a majority in the House of Representatives, where Republicans have a far greater margin -- 238 Republicans to 193 Democrats. And even if they were able to muster the votes in the Senate and House, they need to convince President Trump to sign the CRA. And that's not likely given his distaste for regulation.

Republican FCC Commissioner Brendan Carr said it best: "It's got to go through the Senate, got to go through the House, got to get the president to sign on it," he told Bloomberg BNA last week at the CES show in Las Vegas. "I'm not going to comment on the odds of all that happening."

Why bother with the vote if it's not going to change anything?

The short answer: politics. Democrats want to make net neutrality a midterm campaign issue. 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 for the public to see how Republicans vote on this issue.  

"Every member of Congress is going to say they support an open internet," he said. "But now it's time to put up or shut up."

But Republicans aren't too worried. The chairman of the Senate Commerce Committee, John Thune of South Dakota, told Politico last week that the average American is not likely to see net neutrality as a big issue on which to vote in the 2018 midterm elections.  

"I think they see it as a really hot political issue [that] gets their base kind of energized," he said, speaking of Democrats. "But most people, if their Netflix works, I'm not sure what the argument is."

What about lawsuits being filed against the FCC over the rule changes?

It's difficult to predict the outcome of any litigation. But the reality is that the legal battle will also be a tough road.

Courts generally defer to the expertise of federal agencies, like the FCC, according to Matthew Schettenhelm, a legal analyst with Bloomberg Intelligence.

In this case, the court is likely to say that the FCC can classify broadband networks as a utility or not and then apply the law based on that classification. The US Supreme Court upheld the FCC's authority to make this decision in its 2005 Brand X decision. The courts have also repeatedly reaffirmed independent government agencies' right to change their mind and reverse course on regulation, which means the arguments net neutrality supporters are making likely won't hold up in court.

But Schettenhelm said the DC Circuit, where this case is likely to be heard, is filled with judges appointed by Democrats.

"That can help net neutrality supporters," he said. "But at the end of the day, it's the law, not politics, that matters most -- and it lines up better for the agency."

He added that in a case that is this complicated, high-profile and politically charged, there are no slam dunks. Still, he said the "FCC starts with key precedent on its side. That's an important advantage."

What about Congress stepping in and writing a net neutrality law?

While this solution would offer the most definitive answer, it's likely to be an ugly and difficult process, as the issue has become highly politicized.

Legislation has already been introduced. Days after the FCC voted to repeal the rules, Rep. Marsha Blackburn, a Republican from Tennessee, introduced net neutrality legislation that prohibits internet service providers from blocking and slowing web access But it does not address whether ISPs can create so-called "fast lanes" for companies willing to pay more to have their services delivered faster.

This bill is unlikely to get the support of Democrats.

Senator Thune, the Republican chairman of the Senate Commerce Committee, said the effort around the Congressional Review Act vote is only making it more difficult to get Democrats to the table to discuss compromise legislation.  Lawmakers "need to get the CRA issue … behind us before Democrats are going to be sufficiently motivated to get a legislative solution," he told Politico last week. 

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