Senate Kicks Net Neutrality to the Curb – and to the Courts

Senate Kicks Net Neutrality to the Curb – and to the Courts


Net neutrality proponents didn’t worry about their Twitter traffic being throttled as they celebrated a recent victory handed to them by the Senate. The chamber rejected a joint resolution that would have repealed net neutrality rules issued last December by the Federal Communications Commission.

Net neutrality is a concept based on an open and non-discriminatory Internet. Open in the sense that anyone and any firm can connect any device to or load up any application on the network of networks. Non-discriminatory in the sense that a web surfer can access and download content from a solo practitioner’s law firm web site at the same speed as information from Nixon Peabody or some other large law firm.

The FCC, believing that it was time to formalize four guiding principles for net neutrality, decided to add two more principles regarding transparency and network management.  It then issued rules in December 2010 that would elevate net neutrality from something every broadband access provider and website owner already did to a requirement that they should keep doing what they have already been doing – or else pay a fine.

Just the idea alone of issuing actual rules took some political nerve. Just eight months prior, in April 2010, the U.S. Court of Appeals for the District of Columbia told the FCC that it could not use rules written for telephone companies to regulate broadband access providers, such as AT&T, Comcast, and Verizon. Such an attempt would be frowned upon by the court since the Congress had not given the FCC any explicit authority to regulate broadband services.

Had Congress intended a heavier regulatory touch, Congress would have said so.

Arguably, the FCC did not get the court’s hint … or decided to interpret what the court said under some other standard than plain meaning. By December 2010, the FCC had issued its net neutrality rules, setting up a showdown with the Congress.

The showdown wasn’t anywhere near what the Pacquiao-Marquez fight plans to be. While the House voted to repeal net neutrality rules, the Senate decided not to, even though a number of Democrats in the House, including Rep. Bobby Rush (D-IL), believed that the FCC’s attempt at implementing net neutrality was nothing but an end run around the Congress.

When you push back from the issue a bit, Democrats get some credit for a politically shrewd vote. By voting against the resolution, they keep their street cred with the far left electorate and the “grass roots” advocates like Free Press and Public Knowledge.

Democrats can claim during the 2012 elections that voting against net neutrality was an example of their willingness to stick it to big corporations like Comcast, and that everyone witnessed it on C-SPAN (which, ironically, is funded by Comcast, Cox, and other cable industry companies).

Suppose this was not a resolution, however, but a bill written to express that the FCC must get supporting authority for net neutrality rules or any other rule? The outcome might have been very different. It would have been hard for any member of Congress to hand off their most important powers to some administrative agency ran by unelected officials.

And the FCC? What’s next for them and how will they fare? In short, they would rather face Manny Pacquiao.

First, they will have to go back to court and battle Verizon. Verizon will make the argument that the FCC – following instruction from the court in FCC v. Comcast not to return to court without Congressional statutory authority – still has no statutory authority from Congress to regulate broadband.

Second, assuming that the FCC loses in court, they will end up at square one. No statute. No rules. And with the likelihood that the House could stay in the hands of the Republicans, the chances of Congress passing a law giving the FCC authority to regulate broadband is very small.

Minority consumers of broadband access were noticeably left out of the Senate debate on net neutrality rules. No surprise there. The rules don’t address the digital divide nor have supporters of these rules attempted to show how net neutrality increases the number of minority broadband access consumers. Quite the opposite has been the case where net neutrality supporters like Free Press and Public Knowledge have attacked any and all civil rights groups that have come out against the rules.

Given the disproportionate use of social media and wireless phones by African Americans and Hispanics, one would think that net neutrality supporters would have enlisted the minority community’s support by now.

However, given that net neutrality hasn’t even been shown to increase minority access to broadband, it’s fair to conclude that these demographics gain little from these rules.  Repealing the rules would have been more in the best interest of minority communities than keeping them.



  1. You are telling me AT & T and the other communication giants actually BENEFIT from the rule that keeps them from discriminating between websites, and that this net neutrality rule would actually work in favour of big corporations instead of ensuring equality for all? What twisted logic do you apply?