Senate votes to save net neutrality, but the fight is far from over

The petition still has to make it through the House — a long shot — and then past Trump’s desk.

The Senate voted by a narrow margin on Wednesday to preserve net neutrality and repeal a controversial Federal Communications Commission ruling to dismantle it. But the fight is far from over.

A vote to open debate on the ruling passed 52-47, after which the vote on the ruling itself also passed 52-47. Going into the debate, the creator of the Senate resolution, Sen. Ed Markey (D-MA), seemed confident petitioners had the votes needed to push the measure through the Senate. In the final vote, a few Republicans swung in favor of the ruling, including Sens. Lisa Murkowski (R-AK), John N. Kennedy (R-LA), and Susan Collins (R-ME).

The petition allowed Congress to undo the FCC’s December repeal of net neutrality using the Congressional Review Act (CRA), which lets Congress reverse — and, crucially, permanently block — any federal regulation with a simple majority vote.

On the Senate floor during the debate over the vote, Markey cited a long list of instances in which internet service providers like Verizon, Comcast, and AT&T had blocked customers’ access to competing services in the days before net neutrality rules took effect in 2015. He urged lawmakers to halt the dismantling of net neutrality “to protect the integrity of the marketplace.”

Sen. John Thune (R-SD), chair of the Senate Commerce, Science and Transportation Committee, in turn blasted Democrats for “political theater” and rejecting his plea for bipartisan legislation on the issue. Senate Democrats have criticized his proposed bill as being far weaker than Obama-era net neutrality regulation.

Although the repeal of the FCC’s ruling has been approved in the Senate, the petition will face a tough fight in the House, where a long list of Republicans support the FCC's push to dismantle the regulation. The House is less likely to support Markey’s resolution, and even if it makes it out of Congress and onto President Trump’s desk, the president will most likely veto it.

The FCC repeal initially went into effect on April 23, 2018, from which point Congress has 60 days to review and revoke it under the CRA. Technically, some relatively minor parts of the repeal took effect on April 23, including the reclassification of the internet as an information service rather than a utility. But none of the ruling’s major consequences are being felt just yet; the full law goes into effect on June 11 unless Congress votes to rescind it. Alternatively, Congress could simply delay a House vote until the 60-day period expires, thereby losing its narrow window of opportunity to cancel the repeal.

The implications of the FCC’s repeal are vast and complicated. If congressional efforts to save net neutrality fail and the repeal is allowed to take effect, it will almost certainly fundamentally change how people access and use the internet.

Net neutrality’s best chance at survival lies with the courts

There’s also still a chance that the repeal might be overturned, not by Congress but by the US Court of Appeals. All 22 states with a Democratic attorney general have signed on to a joint lawsuit against the FCC to revoke the new rules. And this might be the best chance we have at weaving net neutrality protection into the fabric of internet law.

The multi-state appeal was announced by the attorney general of the state of New York, Eric Schneiderman (who recently resigned after multiple allegations of assault). The attorneys general of the other states joined the appeal by filing similar suits, which petitioned the US Court of Appeals for a review of the FCC’s order. These lawsuits were filed in both DC and San Francisco, and were eventually punted collectively to the Ninth Circuit Court of Appeals in San Francisco.

The selection of San Francisco was essentially hitting the jackpot for net neutrality advocates. Judges serving Silicon Valley are far more likely than judges in other cities to have presided over previous cases involving internet regulations. They’re also far more likely to be well-versed in the many technological issues at play. Since the ultimate outcome of the states’ lawsuit will be largely dependent on which court hears the appeals, this court selection could turn out to be the most crucial factor in whether the repeal takes effect.

That said, a court fight will be long and messy, so we can’t know when — or if — the repeal's full effects will be felt. It’s possible that even if a court overturns the FCC’s decision, it may only overturn part of it. What the final version of a net neutrality repeal might look like, and when it might take effect, are both unknown at this point, with the future of an open internet hanging in the balance.