Senators, almost all Democrats, voted 52 to 47 Wednesday for the reinstatement of “net neutrality” rules that were undone by the Federal Communications Commission in December 2017.
Democrats already seemed to have the votes to successfully restore the internet regulations, but Republican Sens. Lisa Murkowski of Alaska and John Kennedy of Louisiana put it over the top. Murkowski voted against classifying the internet as a Title II utility rather than Title I — the crux of the net neutrality argument — in 2009, but has evidently changed her tune.
After initially having to vote Wednesday to move forward for debate, which narrowly passed 52-47 as well, Senate Democratic leaders were able to muster enough “ayes” to overturn the FCC’s more recent repeal of rules previously mandated under a different FCC makeup known as the Open Internet Order. That part of the legislative course was expected. However, the rest of the path forward for Massachusetts Democratic Sen. Edward Markey’s Congressional Review Act (CRA) resolution is inauspicious to say the least, as its prospects for survival in the House and the president’s desk is very unlikely.
The CRA is a legislative maneuver that allows for an official disapproval of a decision mandated by a federal agency with just a simple majority. Democrats (including two Independents) had been campaigning for one more Republican to join their fellow party member Sen. Susan Collins of Maine and the coalition to tip the scale to 51 of the 100 senators required. Despite the lack of any concessions, they didn’t need 51 because of Republican Sen. John McCain of Arizona’s absence, leading some to believe they may have taken advantage of the veteran lawmaker’s poor health. Nevertheless, McCain’s unavailability didn’t ultimately matter.
Proponents of the CRA resolution say the 2015 rules are necessary for ensuring that broadband companies don’t throttle or block internet access, nor splice such services into different tiers of payment.
“The internet should be kept free and open like our highways, accessible and affordable to every American, regardless of ability to pay,” said Senate Minority Leader Chuck Schumer in a statement, echoing recent comments made on the floor. “The repeal of net neutrality is not only a blow to the average consumer, but it is a blow to public schools, rural Americans, communities of color and small businesses.” (RELATED: Schumer Claims Americans Need Government To Establish Price Controls Over Internet [VIDEO])
Despite such assertions, Democrats also know that regardless of the probability that Markey’s bill won’t go any further, it’s key for galvanizing voters ahead of the 2018 midterm and 2020 elections — especially since it’s such a critical debate, albeit one that has grown into hysterical proportions. Democratic Sen. Brian Schatz of Hawaii has said as much, stating that “It’s really important for those of us who care about net neutrality to mobilize for 2018.”
Petitioning the FCC and educating “friends via social media” is also important, “but in a representative democracy, the way to get policy changes is through elections,” Schatz continued.
Schumer used his political stature to do so once again during the opening remarks of the deliberation.
“I would urge Americans, average Americans, young people, old people, everyone in between, small businesses, e-mail, call, write, visit your senator on the Republican side and urge them to preserve net neutrality,” Schumer appealed. “It’s only right. It’s only fair, and it makes economic sense.”
Others agree about the politics, but with not much fanfare.
“Today’s vote was driven by political double-speak designed to win mid-term election votes. The net neutrality rules the CRA is intended to restore were designed to protect the special interests of big tech monopolies, not protect consumers. How? By letting big tech block websites, charge tolls, and create fast lanes while prohibiting big tech’s competitors from doing the same,” said Fred Campbell, president of the market-oriented consultancy group Tech Knowledge, referring to the tech industry not affected by the rules. “A consumer-focused approach to internet regulation wouldn’t work this way. It would first ask what rights internet consumers should have and then adopt policies that protect those rights irrespective of corporate identity or technology.”
Opponents of the CRA resolution generally argue that prioritization is a fundamental aspect of the internet, and that there are ways to hold companies accountable for bad practices without heavy-handed regulations originally drafted to regulate telephone monopolies in the early and mid-1900s.
Republican Sen. John Thune of South Dakota, who chairs the presiding Senate Commerce Committee, opened his own remarks by saying he’s for net neutrality, adding that such comments may come as a surprise to his colleagues on the other side of the aisle. He claimed, though, new legislation that actually has a chance at bipartisanship support is required to truly enact fair rules over the internet without implementing cumbersome regulations — rather than just a reversion to rules mandated by a federal agency.
“Some of my colleagues on the other side of the aisle have certainly also expressed a view about the need for legislation. I mean some of them come up to me privately offline and say, ‘You’re right, we need to do this legislatively, we need to put clear rules of the road in place. This is not the way to solve this problem,'” said Thune. “But very few of them are willing to say that publicly.”
Thune tried to buttress his argument of a need for new legislation with an article from the Los Angeles Times editorial board, which expressed disapproval of the FCC’s most recent decision, and showed support for net neutrality as well — just not the Democrats’ version of it.
He also cited a fact-check from The Washington Post, which judged a claim from the Senate Democrats — “If we don’t save net neutrality, you’ll get the Internet one word at a time” — with “Three Pinocchios,” meaning the publication deems it “mostly false” and includes “significant factual error and/or obvious contradictions.”
Republican Sen. James Lankford of Oklahoma views Democrats’ push as an attempt at a solution to which there is no problem. He argues how the internet has flourished under the same rules for years, before a prior FCC administration concocted lengthy regulations.
“For 20 years the internet functioned under a very clear set of rules. The Federal Trade Commission [FTC] had a set of rules for both content providers, and for the fiber, the internet service providers,” Lankford said on the floor during arguments. “Then two years ago the FCC … decided they wanted to regulate not the content and the internet service providers, just the internet service providers. So the FCC in an unprecedented ruling that had already gone to court multiple times and failed, grabbed the regulatory control from the FTC.”
Like Campbell’s aforementioned argument, Lankford also sees the issue as a cunning case of rent-seeking in which one larger industry seeks regulations over the other for a substantial advantage.
“Over the past two years, America has been drawn into a fight between two sets of mega-companies; Google and Facebook and Netflix are at war with AT&T and Comcast and all the major internet service providers,” said Lankford. “They’re fighting over their business … They’re literally arguing and saying we don’t want them to do what we do every single day, what Google does every day, what Facebook does every day. We don’t want internet service providers to filter out content when of late Facebook seems to put out every week a new release about how they’re filtering content from places that they don’t like.”
Democratic Sens. Elizabeth Warren of Massachusetts, Jeff Merkley of Oregon, Dick Durbin of Illinois, Richard Blumenthal of Connecticut, Schatz, and many others all spoke on behalf of the CRA resolution and its merits, arguing that their political counterparts are yet again just sticking up for big companies.
“What was their [FCC] track? To allow discrimination on the internet by the type of user. To allow discrimination on the internet based on the type of business or the type of social content. To allow discrimination on the internet by the website. To allow discrimination by the type of platform by using iPhone or a desktop. To allow discrimination based on the software application, is it Safari or is it Google,” said Merkley. “Why is that? Because the [ISPs] can sell through that license to discriminate a fast lane to the rich and powerful while the rest of us are stuck in traffic.”
The Democrats and few Republicans have the support from at least one small business advocacy group.
“If that disastrous FCC move is not overturned, small employers could lose business because their websites might experience longer load times, or their sites could be blocked entirely from reaching consumers,” Small Business Majority Founder and CEO John Arensmeyer said in a statement. “The majority of small employers are worried about this scenario.”
As Merkely noted during one point of his speech, Democrats hope the same energy they have brought to the issue in the Senate can carry over into a battle in the House.
Murkowski and Kennedy were also the two Republicans to join Collins and the Democrats to push the motion to vote on the issue. (RELATED: States Are Pushing Their Own Versions Of Net Neutrality Laws While Congress Stalls On Ending Bureaucratic Back-And-Forth)
“The Internet was free and open before 2015, when the prior FCC buckled to political pressure from the White House and imposed utility-style regulation on the Internet,” FCC Chairman Ajit Pai said in a statement. “And it will continue to be free and open once the  Restoring Internet Freedom Order takes effect on June 11.”
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