If the debate over the Federal Communications Commission's rules governing net neutrality has seemed hostile so far, new phases of the battle are just starting.
FCC Chairman Ajit Pai's Restoring Internet Freedom order, which passed last week, undoes Obama administration rules that prohibit broadband providers such as Comcast (CMCSA) , Charter Communications (CHTR) , AT&T (T) and Verizon (VZ) from blocking or throttling traffic, or creating fast lanes that give priority to some traffic. Some internet service providers have said they do not intend to block or throttle traffic, but Pai's rules essentially put them on the honor system.
Opposition to Pai's order is taking shape in the House, Senate and, potentially, the courts.
Rep. Marsha Blackburn (R-Tenn.), who chairs the House Subcommittee on Communications and Technology, went to Twitter (TWTR) Tuesday to announce new legislation that would ensconce at least some of Pai's provisions in law. Blackburn voiced support for Pai in a short video, although she did not spell out many details of her plan and she apparently takes a different position than the FCC on some points. "No blocking. No throttling," Blackburn said in the video snippet about the Open Internet Preservation Act.
@AjitPaiFCC has done his job, now it's up to Congress to do theirs. This bill will ensure there is no blocking, no throttling. It is my honor to sign this bill- let's get it to @realDonaldTrump's desk. pic.twitter.com/jOf0fvFwcd— Marsha Blackburn (@MarshaBlackburn) December 19, 2017
Pai removed the prohibitions against blocking and throttling in his rules, although the Federal Trade Commission can take action against anti-consumer or anti-competitive behavior by the ISPs.
Meanwhile, Sen. Edward J. Markey (D-Mass.) and Sen. Charles Schumer (D-N.Y.) are planning a Congressional Review Act (CRA) resolution that would undo Pai's broadband rules.
CRAs essentially nullify an action by a regulatory body. Earlier this year, Republicans used them to undo Obama administration actions ranging from environmental protections on coal waste to restrictions on hunting in wildlife refuges.
Counting Markey, the CRA has 24 co-sponsors. The group would need 30 to bring a vote. However, senators cannot file the CRO until Pai's rules are submitted to the House and Senate and have been published in the Federal Register. Mid-January is likely the earliest that senators could vote on the CRA, one source said.
Challenges will also take shape in the courts.
New York Attorney General Eric Schneiderman said he will lead a group of states bringing a lawsuit against Pai's rules. A representative said Schneiderman plans to file a legal challenge in the coming weeks, but needs to wait for procedural steps.
Washington State Attorney General Bob Ferguson said on Dec. 14 that he would petition the courts to review Pai's rules "in the coming days." Ferguson's office did not respond to a query about the timing of his suit and whether he would coordinate with New York and other states.
Pai's rules have provisions to prevent states from setting up their own net neutrality rules. At the FCC's December meeting, Commissioner Michael O'Rielly touted the importance of the restrictions. "A hodgepodge of state rules could severely curtail not only the next generation of wireless systems that we have been working so hard to promote, but also the technologies that may rely on these networks in the future," O'Rielly said. "Accordingly, any laws or regulations that conflict with or undermine federal broadband polices are preempted."
Industry and public advocacy groups will join the legal fray. Free Press plans to sue the FCC. raised more than $40,000 to finance its effort and aims to collect $100,000.
Rules governing the internet are likely to be fought over in court until Congress updates the Communications Act of 1996. It's not yet clear whether Blackburn's Open Internet Preservation Act would bring together the warring factions, since the Subcommittee on Communications and Technology Chair has only disclosed a single tweet's worth of information about her proposal.
Given the state of Congress, a happy legislative ending to the openly hostile debate over net neutrality does not seem likely.
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