Congress Preps To Gut Net Neutrality With Bills Pretending To Save It

The Trump administration and its new FCC boss have made clear their intentions to completely trash net neutrality protections, but the threat of backlash and the complications of rolling back such regulations means they'll likely try and and take a lazier, sneakier route towards undoing things.

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Guest Post by Karl Bode on Techdirt

As we've noted a few times, the Trump administration and new FCC boss Ajit Pai have made it abundantly clear net neutrality protections will be going the way of the dodo under their watch. Given the threat of activist backlash and the logistical complications of rolling back the rules via the FCC, neutrality opponents' (like Pai) first step toward eliminating net neutrality will likely be to simply refuse to enforce them. From there, ISPs have been lobbying Congress to pass new laws that either hamstring regulatory authority, or pretend to protect net neutrality while actually doing the exact opposite.

For example, the House last week quickly passed a trio of new bills that would not only allow Congress to roll back Obama-era regulations (including net neutrality) en masse, but would give Congress effective veto power over future regulations from a number of regulatory agencies (including the FDA, EPA, and FCC). But there's also indications the GOP is cooking up a Communications Act rewrite with an eye toward weakening the FCC's authority over industry giants like Comcast, Verizon and AT&T even further.

Over at Vox, readers were recently informed that "A Republican bill could be our best chance to save net neutrality." According to author Timothy Lee, we need Congress to write a quality set of net neutrality protections to establish permanent protections, avoiding the partisan patty cake that occurs each time FCC oversight shifts:

"Donald Trump’s FCC looks poised to repeal the net neutrality regulations Obama’s FCC passed in 2015. If a Democrat is elected president in 2020, it’s a near certainty that the FCC will reinstate a version of Obama’s rules. Then if a Republican is elected in 2024 or 2028, the FCC is likely to tear those rules down.

Having the rules switch back and forth unpredictably is a disaster for both sides in the net neutrality debate. A legislative compromise can solve this problem. Because passing legislation is a lot harder than changing an FCC rule, a rule passed by Congress with buy-in from both parties would have a much better chance of being permanent."

And while it's true that a Congressional net neutrality law would certainly be the preferred and more permanent solution, some of you might have noticed that Congress is so campaign-cash compromised that achieving this end has proven to be virtually impossible over the last decade. Case in point is the "compromise" net neutrality legislation Senators Thune and Upton tabled last year as a last-ditch effort to deter the FCC from tougher rules. The proposal was so stuffed with loopholes as to be arguably useless, but was lauded by industry as a "sensible compromise" to the endless debate over net neutrality.

The problem is that passing ultra-weak rules just to stop the endless game of partisan fisticuffs isn't much of an actual solution to the problem. Thune and the GOP are preparing to table new legislation that would once again profess to put this issue to bed, but is very likely to fail to address the areas where the net neutrality fight is actually occurring right now, including interconnection, usage caps, and zero rating. Still, Lee tries repeatedly to insist that this sort of flimsy legislation would be better than no legislation at all:

"Still, if the alternative is four or even eight years of no network neutrality protections at all, some net neutrality fans might take a deal. More importantly, big telecommunications companies give generously on both sides of the aisle. So there may be some centrist Democrats who are willing to take a deal despite pressure from liberal activists to reject it."

But it's simply not clear that's really true. It might feel good to pass new net neutrality rules professing to put the issue to bed, but if the rules don't actually address any of the actual issues of the day, it's at best just theater, and -- depending on how it's written -- could actually act to make many of the more controversial net neutrality violations legal permanently. And if attempts to defund and defang the FCC are embedded in this or other bills in sync, actually enforcing consumer telecom protections (net neutrality, privacy, or otherwise) could prove harder than ever.

Of course there's another utterly crazy solution: for Congress to finally realize that net neutrality has broad, bipartisan support, and that a healthy and open internet is good for everyone. It's certainly a wild idea, but Congress could put the issue to bed and prove it actually cares about startups, innovators and consumers -- by leaving the existing rules alone, and moving on to other more pressing issues of the day.

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