The clock is ticking on net neutrality, with the rollback of the rules needing only a procedural vote before going into effect.
But that doesn't mean the effort to save the rules governing an open internet is dead. Indeed, the internet went on "red alert" Wednesday as net neutrality activists and websites like Etsy, Tumblr, Postmates, Foursquare and Twilio protested the Federal Communications Commission's effort to undo Obama-era net neutrality protections and as critics of the rollback sought to bring awareness to Democrats' efforts to stop the repeal of the rules.
This latest protest coincides with the Senate using a legislative tool called the Congressional Review Act (CRA) to halt the FCC's repeal of the 2015 net neutrality rules. On Wednesday, senators presented a petition to force a vote on a resolution to undo the rollback. They expect to vote on the resolution by June 12.
As part of the protest, participating sites displayed a "Red Alert" widget that people could click on to fill out a form to ask their legislators to support the CRA resolution.
"Today kicks off the most important week for the internet that the Senate has ever seen," Sen. Ed Markey, who is leading the CRA effort in the Senate, said at a press conference Wednesday. "By passing my CRA resolution, we restore the rules that ensure Americans aren't subject to higher prices, slower internet traffic, and even blocked websites because the big internet service providers want to bloat their profits."
The net neutrality rules, passed in 2015 under President Barack Obama, prevent broadband and wireless companies from blocking or slowing internet traffic. The rules have become highly politicized, with Democrats in Congress and many internet companies, such as Google and Facebook, strongly voicing their support. A majority of the public supports net neutrality as well. Following the vote in December by the Republican-led FCC to repeal the rules, Democrats in Congress are looking to the CRA as a loophole that could save net neutrality.
Republican lawmakers and broadband lobbyists said the Democrats' efforts do nothing to protect consumers. Sen. John Thune, a Republican from South Dakota, said in an op-ed for CNBC that he supports net neutrality, but that Democrats have "manufactured a controversy" and created "political theater" with the CRA resolution vote in order to preserve outdated, monopoly-era regulations.
"If the Democrats are serious about long-term protections for consumers, they should look ahead towards a bipartisan solution," Thune wrote. "The bottom line is, Congress should be spending time on a permanent solution that is not subject to Washington power shakeups."
These sentiments were echoed by industry lobbyists.
"Supporting the CRA will not protect the open and vibrant internet we all want and consumers expect," Jonathan Spalter, president and CEO of USTelecom, said in a statement. "To ensure safeguards and real net neutrality, America's online consumers need Congress to come together and craft modern rules to end this debate once and for all."
Meanwhile, the FCC has just declared that 2015 net neutrality rules will finally come to an end on June 11.
What exactly is the CRA and what does it mean for the movement to preserve net neutrality? We break it down for you in this FAQ.
What's the Congressional Review Act?
The CRA was passed by Congress in 1996 under President Bill Clinton. It's designed to give Congress a speedy legislative process to review and overrule a regulation adopted by a government agency. A resolution to overrule must be passed by both the House and Senate, and it must be signed by the president. There's also a time limit. It can be passed only within 60 legislative days of the enactment of the agency's regulation. These aren't calendar days; they're the days Congress is in session.
If an agency's regulation is overruled, the CRA prohibits that agency from reissuing a similar rule ever again, even if the political winds shift, "unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule."
Has the CRA been used in the past?
Prior to 2017, the CRA had been successfully invoked only once, to overturn a Department of Labor rule in 2001. In 2017, following the inauguration of President Donald Trump, the Republican-controlled Congress began passing a series of "disapproval resolutions" to roll back several Obama-era regulations.
Because the legislative session in the final year of Obama's presidency was shortened by the 2016 election, Congress was able to claw back regulations adopted as far back as May 2016. Fourteen such resolutions were passed in 2017, including one that overturned rules the FCC had adopted in October 2016 that protected online consumer privacy.
How could the CRA be used to preserve net neutrality?
The Republican-led FCC voted to repeal the 2015 rules in December 2017. Once the change was posted in the Federal Register in February, Democrats in the House and Senate were able to start mobilizing to pass a resolution of disapproval under the CRA.
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Sen. Ed Markey, a Democrat from Massachusetts, is leading the charge in the Senate, where the measure has a better chance of passing. All 49 Democrats in the Senate support the effort to undo the FCC's repeal. One Republican, Susan Collins of Maine, also supports the measure. Because the resolution has to pass with only a simple majority, just one more Republican is needed in the Senate. Then things can move onto the House for a vote. From there the president must sign the resolution to overturn the repeal. Without his signature, the CRA resolution fails.
What's happening now? How does this process work?
While most legislation or resolutions need to pass through a committee before they're voted on in the full Senate, the CRA allows 30 senators to bypass this process and force a vote of the entire Senate 20 days after the rules have been published in the Federal Register, which is Wednesday. That's what Markey and his senate colleagues did Wednesday. He's officially "discharged the petition" and bypassed the committee process to schedule a vote in the Senate.
Once a vote is put on the legislative calendar, any senator can make a motion to proceed with debate on the resolution. Then a vote will be called. It then requires only 51 votes to send the resolution to the House.
So there's no vote Wednesday?
No. This is how Congress rolls: methodically. The vote still needs to be scheduled.
OK, when will the vote happen?
That's hard to say. A vote has not yet been scheduled. Some senate staffers say they expect a vote could happen as early as next week. But the vote, if it's going to happen, must take place before June 12. Republicans still control the Senate, and it's unclear if Senate Majority Leader Mitch McConnell, a Republican from Kentucky, will use rules of the Senate to block the vote outright.
Say the resolution makes it out of the Senate — is there enough support in the House for it to pass there?
So far, it doesn't appear there's enough support. As in the Senate, a simple majority is all that's required in the House to pass the resolution, which means 216 votes are needed. Given that there are 236 Republicans in the House and only 193 Democrats, it seems unlikely the resolution will pass both houses of Congress.
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While advocates emphasize that net neutrality is not a partisan issue and that many Republican voters actually support the 2015 rues, the reality is a large number of Republican lawmakers are unlikely to break with their party to use the CRA to keep the Obama-era rules. It's also not clear if every Democrat in the House will vote for the resolution. Rep. Mike Doyle, a Democrat from Pennsylvania who's leading the effort in the House, has only 160 co-sponsors for his CRA resolution.
Let's say that by some miracle it passes the House, too. What are the chances Trump will sign it?
The odds of Trump signing the resolution are slim. It's hard to say for sure what the president thinks about net neutrality or if he's given it much thought at all, since it's not a topic he's tweeted about after taking office. But given that Trump appointed Ajit Pai, the FCC chairman leading the charge to dismantle the rules, it's probably safe to assume he wouldn't overturn a measure his own guy adopted.
Still, Trump has proved to be unpredictable, so you never know.
Why are Democrats even bothering if the effort seems unlikely to actually overturn the FCC's repeal of the rules?
The short answer: politics. Democrats want to make net neutrality an issue in the midterm election campaigns.
Their plan is to force vulnerable Republican candidates to stand with their party and adopt a position that many polls show is unpopular among most Americans.
Sen. Brian Schatz, a Democrat from Hawaii, said it's important for the public to see how Republicans vote on this issue.
"Every member of Congress is going to say they support an open internet," Schatz said in an interview earlier this year. "But now it's time to put up or shut up."
Is there any other hope for keeping the 2015 rules in place?
Several tech companies, like Vimeo, Mozilla, Kickstarter, Foursquare and Etsy, as well as 22 state attorneys general, have already filed lawsuits to preserve net neutrality protections.
There are also more than two dozen states, including California and New York, considering legislation to reinstate the rules within their borders. Earlier this year, Washington became the first state to sign such legislation into law. Governors in several other states, including New Jersey and Montana, have signed executive orders requiring ISPs that do business with the state to adhere to net neutrality principles.
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There's also the hope that Congress can come together and pass legislation to protect net neutrality. The debate over net neutrality and whether and how to regulate the internet has been going on for nearly two decades. Lawmakers on both sides of this issue say it's time to enact a law to protect net neutrality. Of course, they don't agree on what those rules should look like.
But strong support in the House and Senate for the existing 2015 rules, even if the CRA measure fails, could send a message to lawmakers about what this permanent fix should look like.
First published May 9 at 5:00 a.m. PT.
Updated 12:35 p.m. PT: Added that the Democrats' CRA resolution has officially been "discharged," along with new comments.
Updated May 10 at 8:22 a.m. PT: Added the FCC's declaration that the net neutrality rules end on June 11.
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