Is a Reversal of the Net Neutrality Repeal Possible?

Part two in a series of three…

Many companies and political figures have been very outspoken about their dismay for the overturn of the net neutrality laws that were passed by the previous administration. : As reported by Recode, this past week the situation escalated when the FCC Chairman Ajit Pai canceled a talk at the CES technology trade show after receiving death threats. However, threats to the leaders of the FCC is not new. In 2014 Tom Wheeler, the Chairman of the FCC at the time, was prevented from leaving his driveway by protesters who were also protesting net neutrality.

Net neutrality is clearly a major hot topic in the US. But many are still wondering if it is in fact possible for a reversal to happen. Techcrunch drafted an in-depth article highlighting the steps it would take for a reversal, and if it is even a likely endeavor. Senators and congressional leaders have made their intentions known to attempt to repeal the FCC vote via the Congressional Review Act, which is a law that empowers Congress to undo a law issued within 60 days. However, in order for the CRA to actually overturn the legislation they would need the majority vote – something that seems unlikely in a mostly Republican Congress.

In a recent interview with Techcrunch on the matter, Senator Brian Schatz said: “I’m on board with the CRA – in a Republican Congress, I’m not sure what the likelihood is of success. But it’s very important to try, and it’s important to get everybody in Congress on the record. We want every member of Congress to have to go on the record and say whether or not they agree with what the commission just did.”

There could also be another path in the fight against the repeal: the courts. New York Attorney General Eric Schneiderman has stated that he is planning a lawsuit. Disputing the content of the regulation itself is the only way to get results from the court system. The Administrative Procedure Act requires that rules not be “arbitrary or capricious”, so litigants would have to prove that the new law is arbitrary for it to have an effect in court.

Another tactic that individual states are taking is to create their own set of rules. Both New York and California are creating their own rules to bypass the federal regulations. Assemblywoman Patricia Fahy created a bill that would require ISPs to follow net neutrality guidelines, meaning that they can’t block, speed up or slow down traffic for company interest. Without meeting these demands, ISPs would not be able to get a state contract.

According to Fahy, “the feds have, we think, walked away from a free and open internet. We’re using a side door — I don’t want to say a back door. The reason we want to do this legislatively is because we know we can move faster than a court case.”

In California, Senate President Pro Tem Kevin created a bill that would require ISPs to follow the previous net neutrality laws. This comes after Senator Scott Weiner presented a similar bill in San Francisco.

“California has a long and questionable history of passing laws and regulations that end up applying to the whole country, because companies don’t want to or can’t change their products to sell them just in California,” said executive director of the International Center for Law & Economics Geoffrey Manne.

As the opposition to net neutrality laws becomes more vocal it will be interesting to see which route, if any, opponents take. The industry will also hope that whichever method they choose is effective enough against new federal regulations.