With FCC Poised to Publish Net Neutrality Rule, Efforts to Block It Grow

WASHINGTON (CN) – The Federal Communications Commission is expected to publish notice of the end of net neutrality rules in the Federal Register this week, effectively starting the play clock on lawmakers who wish to stop the widely criticized reversal.

The FCC board voted 3-2 in December to kill the Open Internet Order, an Obama-era policy which barred internet service providers from creating fast and slow lanes for preferred customers.

Once published in the Federal Register, lawmakers opposed to the policy reversal will have only 60-days to block the new FCC policy from going into effect.

Sen. Ed Markey, D-Mass., successfully rallied the Senate’s Democratic caucus last month by proposing a hard stop to the FCC’s rule. Markey also gained the support of one Republican, Sen. Susan Collins of Maine.

Markey is seeking to block the new FCC policy under authority granted under the Congressional Review Act, or CRA.

Under veil of the CRA, if opponents of FCC plan can gather enough votes. they’ll be able to attempt to kill it by resolution. Under Senate rules, the opponents can bypass committee review for a joint resolution and force their measure to the floor for a vote.

Markey’s proposed resolution also bars the FCC from attempting to repeal net neutrality again in the future.

Similar legislation was proposed in the House last month by Rep. Mike Doyle, D-Penn. As of Feb. 2, Doyle has the support from 110 co-sponsors, all democrats.

With Republican Sen. Collins’ vote secured, Democrats must finagle at least one more Republican lawmaker to ensure their measure passes in the Senate.  They may have success convincing Sen. John Kennedy of Louisiana to join them.

Sen. Kennedy has been open about his hesitancy on overturning the Obama-era regulation.

“There are a lot of nuances and there are very good arguments on both sides. I’m honestly very undecided. Right now, to me, it’s a very close call,” he told the National Journal in January.

Net neutrality advocates also swarmed Kennedy’s office in Baton Rouge on Jan. 30, for protests urging him to be the 51st vote Sen. Markey needs to force a floor vote.

The senator did not immediately respond to multiple requests for comment Monday.

Even with Kennedy’s backing in the Senate, Doyle’s bill will still need the support of score of House Republicans to advance a congressional block to the FCC action. Even if both Houses of Congress pass their respective measures, a reconciled bull would still need to clear President Donald Trump’s desk.

In an interview with Courthouse News Monday, Brian Dietz, vice president at the Internet and Television Association, called attempts at stalling the order a “cynical political strategy.”

“[It’s] not a responsible policy solution,” he said. “Americans are tired of the endless partisan carping on this issue and deserve a permanent solution which ensures sensible consumer protections within the proven framework of light-touch regulation.”

New York Attorney General Eric Schneiderman takes a different stance.

On Jan. 16, the attorney general, joined by 22 of his Democratic colleagues from other states, filed a challenge to the FCC’s decision, questioning its legality and constitutionality.

Schneiderman’s petition, filed in the D.C. Circuit, says there is a  need for an “abundance of caution” in regard to the FCC plan and “state petitioners … preserve the right to be included in the judicial lottery under 28 USDC.”

Filing in D.C. was strategic. since the D.C. circuit is historically a favorable venue for open internet advocates. It upheld the FCC’s net neutrality rules in 2016.

If Congress fails to prevent the end of net neutrality, the policy appears destined to face multiple legal challenges across the U.S., and many states, including California, have already introduced legislation pursuing their own net neutrality laws.

State Senate President Kevin de Leon, D-Los Angeles, said California’s bill, Senate Bill 460, would prohibit internet service providers from charging more money for faster access.

On Tuesday, Massachusetts Attorney General Maura Healy, one of the attorneys general on record as opposing the FCC plan, will testify before a special senate committee on steps her state might take to preserve net neutrality if the proposal isn’t stopped, and how it intends to enforce its own rules.

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