How To Save Net Neutrality

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Last month, a federal appeals court struck down the U.S. Federal Communications Commission’s net neutrality rules. Yet, while those rules ensuring free-flowing internet traffic are in limbo, a former FCC Commissioner says that the agency has everything it needs to restore them — it just hasn’t indicated that it will do so yet. Instead, the agency’s been fairly silent on what it plans to do about the court’s ruling.

Last month’s decision by the United States Court of Appeals for the District of Columbia Circuit accepted Verizon’s claim that the FCC acted improperly by issuing its net neutrality rules. Without net neutrality, those internet service providers or ISPs could block or slow access to some sites or mobile apps, and even require sites and developers to pay for faster access. (Verizon has denied recent allegations that it was limiting bandwidth to certain providers, such as Netflix.)

Yet, according to former FCC Commissioner Michael Copps, the court struck the rules on a fairly narrow grounds that can be fixed without congressional intervention. The crux of Copps’ argument is that existing federal law gives the FCC robust authority to regulate “telecommunications” but not “information services.” Ten years ago, however, the FCC classified broadband Internet service as an “information service” and not a form of “telecommunication” — effectively cutting off much of its ability to regulate broadband in the process. But Copps believes that the FCC could simply reclassify broadband as telecommunications. Admittedly, this would require a lengthy process to complete, but he argues that it would solve the problem created by the court decision without requiring an Act of Congress.

If the FCC decides to go down this road, however, an important question is what happens to the Internet in the mean time while FCC’s net neutrality rules remain invalid? Congressional Democrats in the U.S. Senate and House of Representatives each introduced bills Monday that address this question. The bills, dubbed the Open Internet Preservation Act of 2014, would be a workaround to the court’s decision, reviving net neutrality until the FCC finalizes either a brand new or revised set of rules.

But this bill will be only a temporary fix if the FCC decides not to respond aggressively to the court’s decision. Despite outpouring support from consumers, advocates, President Obama and now members of Congress, the FCC hasn’t yet indicated if or how it will try to revive net neutrality.

The Open Internet Preservation bill championed by Rep. Anna Eschoo (D-CA) and Sen. Ed Markey (D-MA) would protect the open internet and buy the FCC time to update the original rules. But the agency hasn’t said whether it would rewrite the rules to get them reinstated. Since the court’s ruling last month, there’s been an deluge of petitions from consumers asking for action but the FCC has been relatively mum. In a live video chat, President Obama said the FCC supports net neutrality but was taking time to weigh all of its options before making any decisions. “If the old systems and rulings that they had in place were not effective in preserving Net Neutrality,” Obama explained, then the question is “do they have other tools that would stand up to court scrutiny that accomplishes the same goals?”

Should the FCC opt not to redefine ISPs, it would only hurt consumers, says Copps, who ushered in the original net neutrality rules. And even if the FCC does decide to act, the new rules could be in limbo for years. Although Eschoo and Markey’s bill would prevent that by restoring the old rules to how they were in December, it likely won’t sail through Congress. Even though Democrats control the Senate, they are split on the net neutrality issue with most supporting it but some believing its unnecessary. Meanwhile, Republicans, who control the House, pushed to repeal the original rules when they were first adopted in 2010. So even if the FCC breaks its silence, the net neutrality bill is likely to be a nonstarter in Congress.