Sen. Brian Schatz: Net neutrality isn't dead

Despite the FCC's repeal of Obama-era regulations, the fight to preserve net protections has only just begun, says the Democrat from Hawaii.

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
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Democrats on Capitol Hill say they aren't giving up on their fight to preserve Obama-era net neutrality rules, which were eliminated Thursday by Republicans in the FCC.

U.S. Sens. Ed Markey of Massachusetts and Brian Schatz of Hawaii are leading more than a dozen senators to introduce a Congressional Review Act resolution aimed at undoing the FCC's actions and fully restoring net neutrality rules. Democratic Senate leader Charles Schumer of New York signed on to the effort Friday.

US Sen. Brian Schatz, a Democrat from Hawaii, says his party is ready to fight to keep net neutrality protections in place.

US Sen. Brian Schatz, a Democrat from Hawaii, says his party is ready to fight to keep net neutrality protections in place. 

Chip Somodevilla/Getty Images

U.S. Rep. Mike Doyle of Pennsylvania's 14th District is leading a similar legislative path in the House.

The Democrats' efforts come after Republicans on the FCC this week scored a 3-2 victory in dismantling the 2015 rules, which were designed to ensure that all traffic on the internet is treated equally and to prevent broadband and wireless providers from blocking or slowing online content. The agency also voted to eliminate the legal foundation that gives the FCC oversight over internet service providers.

The vote was the latest twist in a debate that's raged for nearly two decades about how or if the internet should be regulated. Consumer advocates; internet companies like Facebook and Google; and nonprofits, including the New York Public Library, say protecting an open internet is essential to free speech and innovation on the net. 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 also 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.

Meanwhile, state lawmakers in California and Washington are also planning to introduce legislation to replace the federal rules, even though those efforts are likely to be thwarted by the FCC, which included in its new rules a measure that pre-empts states from bypassing federal regulations. New York State Attorney General Eric Schneiderman says he plans to sue the FCC, and a bevy of lawsuits is also expected to be filed after the FCC repeal is published in the Federal Register, early next year.

CNET caught up with Sen. Schatz, the Democrats' ranking member on the Senate Subcommittee on Communications, Technology, Innovation and the Internet, who's been an outspoken critic of the Republican repeal, to hear his thoughts on where net neutrality supporters will go next. Below is an edited version of our conversation.

Q: What's next in the fight to preserve the 2015 net neutrality rules?
Schatz: The first thing is the Congressional Review Act legislation that I'm co-introducing along with some other Democrats to reverse the FCC's repeal. In a Republican Congress, we will not get our hopes up. But we're going to fight for this. And I do think it's important to get everyone on the record on this critical issue.

This is the same Congressional Review Act that Congress used earlier in the year to wipe out a lot of regulations adopted in the last months of President Obama's administration, including the regulations the previous FCC adopted to protect broadband privacy?
Schatz: Yes it is.

If Congress were to use the Congressional Review Act to overturn the FCC repeal of net neutrality rules, the agency would never be able to pass the same kind of net neutrality repeal again, correct?
Schatz: That's right.

What else are Democrats doing to fight this?
Schatz: We now have millions of people who understand net neutrality and feel strongly about it. Over the last two or three days I've seen an enormous uptick in outrage and awareness around what just happened. We need to treat this as the beginning of the fight and not the end.

Brian Schatz

Schatz says the challenge is to turn the enthusiasm about net neutrality into a "viable electoral force."

Bill Clark/Getty Images

The challenge now is to take that enthusiasm and turn it into a viable electoral force. We've shown that we can make noise online and that we can educate the general public. But we haven't proven that we've got real electoral clout. I think that 2018 will be the first year of the "net neutrality" voter. There are going to be young people in particular, but also others, who understand that the only way to reverse this is to get a pro-net neutrality Congress and eventually a pro-net neutrality president.

Do you feel that the millions of net neutrality supporters who commented on the FCC record weren't heard?
Schatz: The truth is we could have had 50 million comments submitted to the FCC and that vote was always going to be 3-2, because you have Ajit Pai, who worked for Jeff Sessions (US attorney general and former Republican senator from Alabama) and Sam Brownback (current Republican governor of Kansas and former congressman); you have Brendan Carr, who worked for Ajit Pai; and you have Michael O'Rielly, who worked for John Cornyn (Republican senator from Texas) and John Kyl (former Republican senator and congressman from Arizona). They were never going to vote with the Democrats on the FCC no matter how many comments were submitted.

But elected officials are different from appointed officials. And elections have consequences. We are in a position to make net neutrality a defining issue coming into the next election, and that's what we've got to do.

What happens if the Congressional Review Action legislation fails? Will Democrats work with Republicans to pass legislation to protect net neutrality and to get permanent rules in place?
Schatz: One of things I have always been open to is making policy in the Senate Commerce Committee. When the Obama administration passed the net neutrality rules in 2015, even when we were winning, I favored trying to get these rules in a statute, because I feel that the best way to establish predictability for the marketplace is to make sure they're not subject to the whims of a partisan vote at the FCC.

So I've been for legislation as long as I've been on the Commerce Committee. A question that remains unanswered is whether or not the Republicans are really willing to enshrine net neutrality into law. Some have said they are, but the caveat has been that they may be willing to establish no blocking, no throttling, and no paid prioritization, but the FCC would have no authority to enforce those provisions in the law. And that's a nonstarter for us.

Schatz: There's no reason to take a provision in the Communications Act and have it be the only one that the FCC cannot enforce. It seems all they want to do is have a nice shiny statute and gut the agency that would be in a position to enforce it.

I am always open to a conversation. I am always open to a bipartisan compromise. But there is no indication that we are particularly close.

If the FCC wouldn't enforce net neutrality, who would?
Schatz: They want to kick it over to the Federal Trade Commission.

But we're getting a little ahead of ourselves. The next step is to get together with Sen. (Bill) Nelson (Democrat from Florida and ranking member of the Senate Commerce Committee), Sen. (John) Thune (Republican from South Dakota and chairman of the Senate Commerce Committee), myself and some others to have a conversation. What I've told everybody is that it may be productive or it may be a quick conversation.

California and Washington have already announced plans to pass their own net neutrality protections. And New York's attorney general has already said he'll sue the FCC over these rules. There's also likely to be a bunch of other lawsuits filed. What should the focus be right now?
Schatz: I'm glad that 18 states' attorneys general and many Democratic governors are standing up for these principles. But we have to do everything at once. As members of Congress, we have to pursue the Congressional Review Act legislation as soon as possible. We should also start our political organizing now. And we need to pursue our litigation strategy. None of these things should happen consecutively. It should all be happening at the same time. 

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