5 Things to Know About the Next Battle Over Net Neutrality

Ajit Pai FCC

The last time that net neutrality was one of the raging policy debates in D.C., protesters routinely appeared outside FCC headquarters, demonstrators blocked the FCC chairman’s home driveway to prevent him from getting to work, and John Oliver helped ignite an outcry that led to almost 4 million comments to the agency.

Based on the remarks of current FCC Chairman Ajit Pai, who wants to reverse the regulatory foundation for the rules, more than likely weakening them, he is expecting the battle ahead. Known for a rather sunny disposition, he actually was a bit pugnacious on Wednesday as he announced his plans, telling the group from FreedomWorks that “this is a fight that we intend to wage and it is a fight we are going to win.”

By all indications, it will be a fight. DemandProgress, which was involved in the last battle, is planning to “drive over one million grassroots actions” this time around. Another group, Free Press, handed out fliers outside of Pai’s speech.

Here’s what to watch out for in the coming months:

What Is Happening? First, it helps to explain what net neutrality is: a concept that internet providers should treat all traffic they handle equally. The existing FCC rules ban ISPs from blocking or throttling content, or from favoring one type of website over another, in the way that traffic is delivered to the consumer.

What Pai has proposed is to repeal the FCC’s means of establishing a tough set of net neutrality rules.

Back in 2015, the FCC’s Democratic majority voted to designate the internet as a “title II” common carrier, a similar designation given to a utility. Supporters said that was the legal underpinning the FCC needed to establish its authority and enforce a robust set of regulations.

Pai argues that the FCC’s approach then put heavy-handed regulation on a fast-moving, fast-growing bright spot of the American economy, and has even diminished investment.

Champions of net neutrality say that without the title II designation, the FCC has little chance of coming up with a set of strong rules that can survive a legal challenge.

While Pai is in favor of the repeal of title II, what is unclear is what kind of rules would replace the current ones. He has reportedly looked at an approach in which ISPs would voluntarily agree to a set of guidelines, but that would fall far short of what longtime activists have sought. That’s why so many activists say that Pai’s attack on title II is an attack on net neutrality itself.

He plans to reveal the full proposal on Thursday, and the FCC would then vote on May 18 to officially kick off a proceeding to gather public comment. Pai indicated that a final vote would come later this year.

Who Gets in the Fight? DemandProgress, a group that was in the last battle over net neutrality, will wage a new fight with plans for online and social media campaigns, as well as appearances at congressional members’ town hall meetings, according to executive director David Segal. On the horizon is Pai’s confirmation hearing for another term at the FCC which, Segal said, could be a “focal point of advocacy.”

“In some ways it will look similar” to what happened in the last net neutrality debate, he said. “The internet is a facilitator of activism.”

He also doesn’t think that the net neutrality will get lost in a slew of other Trump-led efforts that are consuming Washington, like tax reform and healthcare.

“I don’t doubt that it is an intentional tactic of theirs to ‘flood the zone,’ as people are calling it, but I think we can withstand it,” Segal said.

For their part, major ISPs and telecom companies were quick to praise Pai’s proposal, but they also were insistent that they still supported the concept of a free and open internet. Expect a number of conservative groups to get involved as well. Pai pointedly made his announcement before FreedomWorks, a conservative group which is at the ready to urge its own members to weigh in in favor of his approach.

But what can be just as interesting is who doesn’t get involved in a bruising debate. Google and Netflix were very visible in past battles over net neutrality, but it’s unclear and uncertain just how much they will wade into this battle.

Who Defines the Debate? Net neutrality is a term that is difficult to grasp — which is why groups have tried to define it in simpler, more emotional, more momentous terms. In the coming weeks, a number of public interest groups will be ramping up campaigns, with the aim of drawing attention on social media and to get people engaged. Free Press is telling its members that “it’s time to fight to save the Internet.”

Those who favor Pai’s deregulatory approach, however, are also trying to streamline their argument, as the hashtag #freethenet appeared as he delivered his speech on Wednesday.

Pai himself indicated that he was aware of the messaging challenge ahead, as he warned in his speech that opponents of his moves would argue “that Title II is necessary to protect free speech.” Then he argued the opposite.

“Most Americans should recognize this absurdity for what it is,” Pai said. “For government regulation is no friend to free speech, but its enemy. After all, the First Amendment doesn’t give the government power to regulate. It denies the government that power.”

The sole Democrat on the commission, Mignon Clyburn, responded to Pai’s remarks with a speech of her own.

“Broadband providers should not be in the driver’s seat, determining how you use the internet, controlling what content you view, or dictating what kind of devices you can use,” she said.

Expect to hear much more of the rhetoric in the months ahead.

Who Has a Compromise? Sen. John Thune (R-S.D.), the chairman of the Senate Commerce Committee, told the New York Times in February that he favors legislation that “would basically prevent blocking, throttling and paid prioritization but doesn’t go to the extreme of reclassifying broadband as a telecommunications service.”

He even said that as it becomes clear that the FCC is moving to repeal, “it might prompt Democrats on the Hill to say, ‘You know what, maybe a legislation solution makes sense.'”

Thune floated a proposal in the last net neutrality battle, but Democrats balked because it would have stripped the FCC of much of its authority over the Internet, particularly as new issues emerge like interconnection fees and zero rating.

After a debate that has stretched out for more than a decade, could this be the time to try to settle the issue once and for all? As much as a legislative solution makes sense, there is intense suspicion among advocates of strong regulations that a final version of legislation would leave just too many loopholes.

What Do the Courts Say? Major ISPs challenged the FCC’s 2015 rules in court, but so far judges have upheld the regulations.

Were Pai to be successful in his effort to repeal title II, his move could be challenged in court as well. One issue could be that the FCC has to have a basis for reversing itself after just two years.

That’s why Pai is likely to emphasize that the urgency for change is there because of diminished investment by Internet providers. But advocates for the FCC’s current approach challenge that notion, and on Wednesday, were offering up their own set of statements and figures to prove their point.