The net neutrality fight is on: Where do we go from here?

Ultimately, the rules governing the open internet may head to the courts or Congress. We break down how the issue could play out.

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
5 min read

Protesters gather in front of the US Capitol Wednesday as part of a "Day of Action" demonstration telling lawmakers to protect net neutrality regulation. 

Demand Progress

Millions of people have answered a call to support the Federal Communications Commission's existing net neutrality rules.  But will that be enough to convince the agency to back off of its plan to kill them?

In response to the planned overhaul, the Republican-led FCC has received a record-breaking 7.4 million comments -- nearly double the amount it received in 2014 when it was considering the existing rules to ensure an open internet.  Roughly 2 million of those comments were filed on Wednesday, when thousands of activists, individuals and tech companies participated in an online protest to educate people about net neutrality, according to Fight for the Future, one of the organizers of the campaign.

The flood of support reflects the positive sentiment that most Americans have towards the existing rules. In fact, it's one of the few issues that actually unites Americans. A recent poll shows that three quarters of consumers support keeping the existing rules, according to Washington-based Freedman Consulting. The opinion crossed party lines: 73 percent of Republicans, 80 percent of Democrats and 76 percent of independents are fine with the status quo.

But the FCC Chairman Ajit Pai appears dead set on going forward with the proposal. He and Commissioner Michael O'Rielly have been vehemently opposed to the 2015 rules, calling them antiquated and stifling to business investment. They've both repeatedly stated their intent to dismantle them. Pai admitted in a speech introducing his proposal it would be a fight, but he said it was "a fight he intended to win."

So if the FCC does dismantle the rules, what happens next? Consumer advocates and other proponents could launch a legal challenge, tying the issue up in court for years -- perhaps until after the current administration. Or companies could push Congress to pass its own law and take the power out of the commission.

But here's where things get tricky. Court cases can drag on and legislation is certain to involve compromises. Denelle Dixon, chief business and legal officer for Mozilla, says the fight to keep the internet free and open is too important to not push forward. But she admits it may not turn out exactly as she would like.

"Legislation by its nature is complicated and never plays out the way you expect," she said. "One side doesn't always win."

The legal route

Staunch supporters of the current net neutrality regulations say they are already gearing up for the inevitable legal battle.  

"A court challenge is certain if the FCC overturns the existing rules," said Matt Wood, policy director for the advocacy group Free Press.

The 2015 rules have already been challenged in court by AT&T and others. The U.S. Court of Appeals for the District of Columbia upheld the FCC's authority to classify broadband as a utility, a concept that Pai and the broadband providers oppose. Earlier this year, the court also refused to rehear the case before the full panel of judges at the court.

"It's going to be tough for Chairman Pai to prove that the decision the FCC made just two years ago was so wrong that it warrants reclassifying broadband again," Wood said. "Nothing has changed in the network to not make broadband a telecommunications service."

Gigi Sohn, who advised former FCC Chairman Tom Wheeler, the original champion of the 2015 rules, agrees that it will be difficult to convince a court that there is a reason to reverse the regulation.

"Winning in the courts is our best chance of protecting the open internet," she said.

But the court battle could take years to play out. After the FCC adopted the first set of net neutrality rules in 2010, Verizon sued the agency in 2011. The decision went against the FCC when it was delivered three years later, forcing the agency to rewrite the rules into its current incarnation.

Congressional route

Another possible scenario is Congress taking action. Many people, including big broadband companies like AT&T, Comcast and Verizon, say a new law is needed to put in place strong, permanent and legally enforceable net neutrality rules that protect consumers and foster innovation and investment in broadband.

Without a new law, these companies say the lawsuits will continue as regulations swing back and forth depending on which political party controls the White House.

"We believe the best way to end the game of regulatory ping-pong that has been played in the net neutrality space for the past decade, would be for Congress to act and give clear legal authority and legislative direction," David Cohen, senior executive vice president at Comcast, said in a blog post.

Berin Szoka, head of the conservative tech policy think tank TechFreedom, agrees. He said congressional action is inevitable.

"We will still be having the same discussion and argument over this issue in a decade without legislation," he said on a call Tuesday with reporters. "There will eventually be legislation. The only question is when."

Senator John Thune, a Republican from South Dakota and chairman of the Senate Commerce Committee, which oversees the FCC, said in an op-ed this week on the tech site Recode that he is prepared to work with Democrats to draft bipartisan legislation to codify the parts of the rules that everyone agrees with.

"The solution to this dilemma, passing enduring bipartisan legislation, is obvious and -- no, I'm not kidding -- within Congress' reach," he said.

He said more than two and half years ago right before the FCC adopted its rules, he released a draft proposal that outlawed the online practices of blocking, throttling and paid prioritization of legal content over broadband cable and wireless connections. And it did this without subjecting broadband to utility-style regulations that govern the traditional telephone network.

Congressional compromise?

But net neutrality supporters and Democrats in the Senate are skeptical that new legislation is the answer.

"No one believes this Congress can deliver legislation that provides strong net neutrality protections," Sohn said.

Senator Al Franken, a Democrat from Minnesota and a longtime supporter of net neutrality, wants to keep the current rules, but is open to bipartisan legislation if there are strong protections.  But he's skeptical Republicans would be able to deliver.

"Any legislation that we would get in the current Congress would be weaker than the Open Internet order that's in effect now," he said.

But some of the large tech companies that support the current net neutrality rules say they can't afford to have this issue drag on for another decade. They're open to giving Congress a chance to finally put the debate to rest.

Facebook founder and CEO Mark Zuckerberg said in a post on his Facebook page for the "Day of Action" that Facebook supports the current FCC rules for keeping the internet open and free from interference from broadband providers. But he added the company is also open to working with Congress to create a law to protect net neutrality.

Some companies say it may be the best chance of getting more immediate, lasting protections.

"In a perfect world, we'd like to see the rules that exist today remain," Mozilla's Dixon said. "But the reality is that we have an FCC chairman who is set on dismantling them and at some point we need to engage with legislators."

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