Options are running out for net neutrality supporters

FCC Chairman Ajit Pai has released a gloating statement after Democrats failed to invalidate the pompously named ‘Restoring Internet Freedom’ order, making the path for net neutrality much rockier.

In June last year, net neutrality was officially struck from the FCC rulebook as the ink dried on the aforementioned order. There has been much protest and opposition to the rules, and while there are still routes to restore the Tom Wheeler-era rules, the number of options are getting smaller. With a new Session of Congress now in play, the path of invalidation is now closed.

As the rules were passed during the previous Session, the Democrats had a limited amount of time to try and invalidate the ‘Restoring Internet Freedom’ order passed by Pai and his Republican Commissioner cronies. Unfortunately for the net neutrality supporters, the 218 votes required in the Senate was a step too far. By close of play on January 2, only 182 votes, the majority of whom where Democrat, were mustered.

“I’m pleased that a strong bipartisan majority of the US House of Representatives declined to reinstate heavy-handed Internet regulation,” said Pai. “They did the right thing – especially considering the positive results for American consumers since the adoption of the Restoring Internet Freedom Order. Over the past year, the Internet has remained free and open.

“In short, the FCC’s light-touch approach is working. In 2019, we’ll continue to pursue our forward-looking agenda to bring digital opportunity to all Americans.”

What does this mean for net neutrality? There is still a route back for the rules, though it is becoming increasingly difficult.

Invalidating the rules was the simplest option, though the Democrats only had one shot at this. A new Session sets the rules in play, though there are other routes, both legal and regulatory.

On the legal side of things, there are still challenges being made to the ‘Restoring Internet Freedom’ order by numerous companies, consumer groups and Attorney Generals throughout the US. While many of the lawsuits are fundamentally arguing the same point, albeit with various different nuances, the courts will be asked to rule on one area in particular; whether the individual States can enforce their own localised legislation on net neutrality.

Central to this conundrum is California. Having agreed to delay the implementation of its own net neutrality rules in the State, judges will have to ponder the age-old debate of Federal vs. State. This is where it gets very complicated; as the internet is not a localised ‘service’, can California guarantee it will only impose the rules on traffic which is restricted to its borders? Should traffic traverse the cables elsewhere, the State has no right to implement net neutrality rules. This is a concept which is stated in the US Constitution.

On the regulatory front, the Democrats could attempt to force through new legislation which would supersede the ‘Restoring Internet Freedom’ order, in the same was this order did to net neutrality. This would be complicated as you have to suspect the Democrats to not have enough bodies in the room to drive through a majority.

All of the options remaining for the net neutrality supporters are time coming however, which is a factor which will certainly work against them. Pai can take his time and attempt to prolong the issue, as the longer it takes to resolve the less interest the general public and other politicians will have. We are fickle people, we get bored easily, and politicians are as shallow as we are fickle. If net neutrality is no longer getting the necessary amount of attention in the press, less enthused politicians will find a new cause to champion in pursuit of PR points.

The net neutrality battle is not over, but, unfortunately, Pai is winning.