An Historic Vote for Net Neutrality in the Senate
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Round-Up for the Week of May 14-18
For well over a decade, the debate on how best to ensure protections for broadband customers has bounced around Washington, DC. Although Congressional Members have often shared their opinions on network neutrality, few have ever gotten the chance to cast a vote on the issue. That changed this week when the Senate voted 52-47 to adopt Senate Joint Resolution 52 (S.J. Res 52).
S.J. Res 52, introduced by Sen. Ed Markey (D-MA), nullifies the rule submitted by the Federal Communications Commission entitled "Restoring Internet Freedom." Adopted by the FCC is December 2017, the rule, published on February 22, 2018 and set to take affect on June 11: 1) restores the classification of broadband Internet access service as a lightly-regulated "information service"; 2) reinstates private mobile service classification of mobile broadband Internet access service; 3) requires Internet service providers to disclose information about their network management practices, performance characteristics, and commercial terms of service; and 4) eliminates the Internet Conduct Standard and the bright-line rules.
But the Restoring Internet Freedom Order is better known as a repeal of the FCC's Protecting and Promoting the Open Internet Order which banned three practices that harm the Open Internet: blocking, throttling, and paid prioritization. Specifically, these rules, adopted in 2015, said:
- A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or nonharmful devices, subject to reasonable network management.
- A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.
- A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not engage in paid prioritization. “Paid prioritization” refers to the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity.
- Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.
- A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.
Passage of S.J. Res 52 would reinstate these rules.
Obviously, S.J. Res 52 passed on a close vote. All the Democrats and Independents in the Senate supported S.J. Res 52 as did three Republicans: Sen. Susan Collins of Maine, Sen. Lisa Murkowski of Alaska, and Sen. John Kennedy of Louisiana.
After the vote Sen Collins said, "I have long supported common-sense regulations to prohibit Internet providers from prioritizing certain content over other. I also support regulations to clarify that Internet providers must not manage their systems in an anti-competitive way. Restoring the FCC’s net neutrality rules will ensure that the Internet will remain open and continue to be a powerful and transformative platform of innovation and economic opportunity." Like many others, Collins also called for a "careful, deliberative process involving experts and the public" to "ensure that consumers have strong protections that guarantee consumer choice, free markets, and continued growth along with meaningful consumer privacy and data security protections."
Sen. Murkowski explained her vote saying, "I have voted to pass this resolution today so that we can reset the discussion and move beyond the politics at play here to what is really needed—lasting legislation that will provide certainty and move us beyond shifting regulatory standards that depend on who is running the FCC. My interest is always protecting and improving Alaska’s internet connectivity, given our unique circumstances. At stake are rural health clinics and schools that rely on the prioritization of lifesaving telemedicine services and access to educational resources. We must pass legislation that prohibits harmful practices like blocking and throttling but also allows for exceptions to support the unique needs that we have in Alaska. We must stop trying to score political points and work together to ensure an open internet with privacy protections for all consumers."
"There are certain values that need to be preserved with respect to the internet," said Sen. Kennedy. "They include no illegal censorship, no throttling and no discrimination. Nearly 20% of all Americans and 22% of all Louisianans have one choice for an internet service provider who can deliver adequate upload and download speeds. Basically, they don’t have a choice. The vote came down to one thing and one thing only: How much do you trust your cable company? I want to be able to trust everyone, but I believe verification is necessary for a free and open internet. I also believe in love, but I still own a handgun.”
During the debate, Senate Commerce Committee Chairman John Thune (R-SD) proposed that S.J.Res 52 be set aside and the Senate instead take up for amendment and consideration draft legislation he first proposed in 2015 with House of Representatives colleagues Fred Upton (R-MI) and Greg Walden (R-OR). The bill would have prohibited blocking, throttling, and paid prioritization. The bill also would also have created broadband provider disclosure requirements. But the draft has been criticized for its limitations on FCC authority. The provision of broadband Internet access service would have been classified as an information service (as under the Restoring Internet Freedom Order) and the FCC would not have been able to expand Open Intenernet obligations beyond those mentioned above.
“This vote was about politics, not protecting net neutrality," said Chairman Thune. "Unfortunately, it’s only going to delay Senate Democrats from coming to the table and negotiating bipartisan net neutrality legislation. I’m disappointed but not surprised that Democrats rejected my offer to write, consider, and amend legislation in a process open to ideas from both sides of the aisle. Despite this vote, I remain committed to finding a path to bipartisan protections for the internet and stand ready to work with my colleagues on the other side of the aisle when they are ready as well.”
The next chapter of the net neutrality debate will be written in the House of Representatives. Rep. Mike Doyle (R-PA), the Ranking Member of the Commerce Committee's Communications and Technology Subcommittee, introduced House Joint Resolution 129 (H.J. Res 129) in February. The companion to S.J. Res 52 already has 164 cosponsors.
The Republican leadership in the House seems to have no interest in considering Doyle's resolution. After the Senate vote, House Commerce Committee Chairman Greg Walden (R-OR) and Communications and Technology Subcommittee Chairman Marsha Blackburn (R-TN) made a joint statement. “The future of the internet should not be left to unelected government bureaucrats. It should be driven by what has always worked – innovation, American entrepreneurship, and a light-touch regulatory framework. A vote for the CRA was a vote to subject the internet to 1930s-era regulation, when one copper wire was considered advanced technology. What we saw today demonstrates that Senate Democrats are only interested in scoring political points, not coming to the table for good faith negotiations. Consumers deserve certainty, and that’s why we renew our call for a bipartisan, permanent, legislative solution to solve this important issue once and for all.”
On May 7, Rep. Doyle introduced House Resolution 873, a measure known as a discharge petition, that would, if supported by a majority of House Members, force a vote on H.J. Res 129. “With the Majority Leadership in the House opposed to this bill, the only way to bring it before the full House for a vote is through a discharge petition,” Congressman Doyle explained. “Under the rules of the House, a bill MUST be brought to the House Floor for a vote if a majority of Representatives sign a discharge petition demanding it.”
The House has until the end of the 115th Congress (January 2019) to adopt H.J. Res 129. But a vote could come as early as this summer. As Congress is a stimulus and response institution, if constituents stimulate their Members, we'll see how the Members respond.
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Weekend Reads (resist tl;dr)
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ICYMI from Benton
- Mignon Clyburn, Speaking Up For You (Adrianne Furniss)
- Bringing Back Privacy (Michael Copps)
- The BDAC, 5G and Cities: The Power and Perils of Asymmetry (Blair Levin)
- T-Mobile/Sprint: When 3 + 4 = 3 (Kevin Taglang)
June 7 -- Open Meeting (Federal Communications Commission)
June 12 -- Spectrum Policy Symposium (National Telecommunications and Information Administration)
June 12 -- Technological Advisory Council Meeting (Federal Communications Commission)