US Congress seizes net neutrality, stuffs it into a bipartisan black hole

Is there anything Senators won't try to turn into votes?

The number of US senators supporting an effort to overturn the repeal of America net neutrality rules has jumped to 40, setting up a Congressional vote on the issue in early spring.

Unfortunately, as a press conference held on Tuesday morning in Washington DC made plain, political support for the measure is almost entirely thanks to the fact that Democrats feel they can use it to win votes in the midterm elections in November this year.

No fewer than nine senators – all of them Democrats – took the microphone to explain their support of a resolution under the Congressional Review Act (CRA) that would invalidate the controversial decision by US broadband watchdog the FCC to scrap internet traffic protections in December.

And while some senators clearly believe that the FCC's decision was flawed and potentially damaging, the political calculus was never far from their minds.

"There will be a political price to pay for those on the wrong side of history," said the main proponent of the measure, Senator Ed Markey (D-MA). Markey calculated that the vote will take place in early spring or early summer and said that the Democratic Party would use the intervening months to "build grassroots support," virtually salivating over the prospect of "millennials who see the loss of net neutrality as a loss of control."

Democratic leader Chuck Schumer (D-NY) even popped up, sniffing a political opportunity to win a senate seat or two and so turn him from minority to majority leader of the Senate. "President Trump has been derelict in helping average families… he has put corporations over people, CEOs over citizens…" And so on.

Never gonna happen

The reality is – as every senator supporting the measure to overturn the FCC's decision knows – that there is only a small chance of the resolution passing the Senate, an even smaller chance of it winning a majority in the House, and virtually no chance of President Trump signing it.

But a vote in the Senate will force Republican senators to publicly state their support, or lack of it, for net neutrality and so give Democrats the opportunity to use that vote to campaign against them, especially with young voters who aren't locked into voting for one of the two parties. The calculus is that if the issue can energize and turn out just a few percent of additional voters that it could make the difference in tight races.

Which is the only calculus that anyone in Congress seems to be concerned about these days.

Now that the FCC is controlled 3-2 by the Republican party, it has become the source of all that's wrong in the world for Democrats. The federal regulator is a "puppet of special interests" and it had "turned a deaf ear to millions of Americans" while "strangling freedom of communication."

The sad truth is that despite Markey saying that he had "real hope" that they could persuade two Senate Republicans to break ranks and vote for the resolution, and that a vote in the House could "wind up being very close", no one expects it to actually happen.

Net neutrality has become just one more pawn in the endless self-absorbed battles between the parties that has led to Congress' 78 per cent disapproval rating (down from 81 per cent in November).

Watch the courts

As for the likelihood of the FCC's reversal actually being stopped, that will likely fall to the courts, with big tech companies and a number of advocacy groups currently preparing their legal arguments and waiting for the FCC's decision to be formally published in the Federal Register before taking action.

It's not known exactly what tack that legal challenge will take, but there is a good likelihood of it succeeding if the history of net neutrality regulations is anything to go by. Previously, the question was over whether the FCC had the authority to impose the "open internet" rules it had developed.

This time, with the FCC effectively giving its authority away, the question will likely focus on whether the regulator followed its own procedures and adequately accounted for public input in its decision. There is clear evidence that the FCC went out of its way to ignore widespread public criticism of its approach but is that sufficient to invalidate the decision itself? We may well find out. ®