Ron Wyden speaking into microphone (l) Edward Markey (r)

Ron Wyden/Facebook Senator Edward J. Markey/Facebook

Is Democrats’ new net neutrality bill just a 2022 midterms ploy?

Why did it come in August 2022?

 

Karl Bode

Tech

Posted on Jul 29, 2022   Updated on Aug 1, 2022, 8:27 am CDT

Sen. Ed Markey (D-Mass.), Sen. Ron Wyden (D-Ore.), and Rep. Doris Matsui (D-Calif.) introduced their two-page Net Neutrality and Broadband Justice Act, which restores the Federal Communications Commission’s (FCC) authority over telecom monopolies, authority that was stripped away by former President Donald Trump.

It’s a well-intentioned effort to rein in the nation’s giant telecom monopolies. But it’s also one that is likely going nowhere fast.

“For anyone who wants more innovation, more voices, and less corporate control of the internet, net neutrality is an absolute no-brainer,” Wyden said in a press conference yesterday announcing the bill. 

My legislation would reverse the damaging approach adopted by the Trump FCC, which left broadband access unregulated and consumers unprotected,” said Markey.

In a press release and media event, the lawmakers said they hoped to bring attention to the need for more effective oversight of America’s brutally unpopular telecom giants, as well as apply pressure to the stalled nomination of Gigi Sohn to the FCC. 

While the bill’s goal is laudable and overdue, given that net neutrality has been a prominent plank of the Democratic agenda since the 2017 repeal, it’s unlikely to even see a floor vote. 

That’s not the only concern.

Previous congressional efforts to restore net neutrality have stalled thanks to heavily lobbied lawmakers. But if the bill’s goal is to raise public awareness, dropping it in the middle of summer—when many Americans are on vacation—likely undermines the entire point.

It may be nothing more than a campaign ploy. Restoring net neutrality is popular among voters, and now congressional Democrats could toss it as a carrot to their base, hoping to stem what many view as an inexorable Republican takeover of the House of Representatives. 

The FCC’s net neutrality rules, first implemented by then-President Barack Obama’s FCC in 2015, prohibited telecom monopolies from abusing their market power to disadvantage competitors and harm consumers. The rules also required that ISPs clearly disclose any restrictions on your broadband line, ranging from the throttling of internet video to hidden usage caps and surcharges. 

For decades, big telecom has successfully lobbied to restrict the FCC’s authority over broadband providers under the Communications Act. The 2015 FCC decision reversed that trajectory, instead classifying broadband as a Title II service subject to FCC authority.

The Trump FCC’s 2017 repeal of net neutrality didn’t just kill net neutrality rules and once again strip away the FCC’s consumer protection authority. It even attempted to ban states from protecting broadband consumers in the wake of federal apathy, though so far the courts haven’t looked kindly on the FCC telling states what they can or can’t do. 

Markey’s short, two-page bill wouldn’t restore the 2015 net neutrality rules, but would once again reclassify broadband as an essential service under Title II, continuing a multi-decade game of policy ping pong, again giving the FCC the clear legal authority to revisit the rules and better police the heavily monopolized U.S. broadband sector.

This simpler approach streamlines the legal debate over net neutrality to its bare bones, but also punts the issue back to an FCC that may or may not actually follow up. Nothing in the bill requires the FCC to take action, it simply preserves the agency’s authority to do so.

Net neutrality advocates had hoped that the FCC would have restored net neutrality rules itself by now. But an inexplicable nine-month delay in nominating Sohn to the FCC by the Biden administration, followed by a protracted attack on Sohn by the industry that Democrats appear to have done little to message against, gridlocked her nomination in the Senate, leaving Democrats on the FCC without a clear voting majority.

Despite mentioning Sohn’s stalled nomination during the press event, neither Markey nor Wyden offered a clear path to getting the bill to the floor. Consumer groups have long urged Congress to codify the FCC’s net neutrality authority into law, thwarting the regulatory tug-of-war that occurs with each presidential election. But it’s a task easier said than done.

“The pandemic made it clear that broadband was an essential service, critical to all facets of our lives, from education to the economy,” Ryan Singel, a fellow at the Center for Internet and Society at Stanford Law School, told the Daily Dot. 

“This bill simply reclassifies broadband providers as telecommunications providers so that the FCC can once again protect Americans from broadband providers that tack on sneaky fees, impose arbitrarily low data caps, throttle online video, impose limits on what apps we use, and tilt the internet in favor of the apps and services they own,” he said.

The problem? The telecom industry is estimated to spend $320,000 every single day lobbying the nation’s lawmakers, making passing new consumer protections a steep, uphill climb. The telecom lobby has long framed net neutrality as a partisan issue to stall consensus and reform, despite net neutrality’s overwhelming support by a bipartisan majority of Americans.

“This issue, unfortunately, remains partisan even though it shouldn’t be, as consumers on both sides of the aisle need access to affordable, reliable broadband,” Jenna Leventoff, Senior Policy Counsel at Public Knowledge, told the Daily Dot. 

Last year, the New York Attorney General’s office proved that the broadband industry used a variety of fake and dead people to create the illusion of broad support for the repeal. The Trump FCC and broadband industry also launched a multi-year campaign to justify the repeal by falsely claiming the rules had stifled U.S. broadband investment.

“Today’s historically awful FCC action undoing net neutrality unwraps an early Christmas present for Big Cable and unravels essential protections for consumers in Oregon and nationwide,” Wyden said at the time of the repeal. 

Five years later and not a whole lot has changed. U.S. consumers still pay some of the highest prices for broadband in the developed world, 83 million Americans live under a broadband monopoly, and the FCC has less authority than ever to do much of anything about it. Just the way telecom executives and lobbyists envisioned.

In 2018, the Democratic Senate had a brief opportunity to reverse the repeal using the Congressional Review Act, but the effort was scuttled by Senate Republicans and Sen. Kyrsten Sinema (D-Ariz.), who was promptly accused of corruption by consumer groups.

There’s no indication that the voting dynamic in the Senate has shifted. The chamber is still split 50-50, and any defection could kill it. Even if the bill passes, implementation and enforcement could prove tricky thanks to the blockade of Sohn, whose absence means the FCC, quite by industry design, will be unable to craft or enforce any new consumer protection guidelines.

Democratic lawmakers likely know passage is unlikely, but hope their media event will remind voters of the corruption-fueled 2017 repeal ahead of the 2022 midterms.

In that sense, pushing a bill you know might not pass is still better than proposing no solution at all. Especially if the net neutrality fight—which at its core is a battle about telecom monopolization and whether we need competent consumer protection oversight—isn’t going away anytime soon.

“The bill is an important reminder that the Trump administration gutted the FCC, and gives newer members of Congress the ability to show their support for restoring oversight over the most important communication network ever invented,” Singel said. 

At the same time, pushing a bill that won’t pass or be noticed in the summer heat; one that can’t even be enforced by the regulator in question—remains more decorative wishful thinking than tactical riposte to the telecom industry’s multi-decade quest to eliminate consumer protections.  

Markey’s office did not respond to a request for comment from the Daily Dot.


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*First Published: Jul 29, 2022, 9:27 am CDT