Saving Net Neutrality?

In the days and weeks following the midterm elections, the news has gotten steadily better. Undecided House races have been called for the Democrats; statehouses across the country have turned blue; and according to a couple of tweets from Nate Silver, the Democrats got as many votes in the midterms as Trump got in the Presidential election.

According to Silver, that’s unprecedented.

The news may also be good for Net Neutrality. According to the Brookings Institution, a combination of the Democrats’ win and a Supreme Court decision may restore non-discrimination rules to the Internet.

On November 5, the Supreme Court declined to review the decision of the D.C. Circuit Court that twice upheld the 2015 Open Internet Rule. The industry groups that had long opposed non-discriminatory access to broadband networks had previously stopped such regulation at the D.C. Circuit. When they attempted the same thing with regard to the 2015 decision of the Federal Communications Commission (FCC), a three-judge panel ruled the FCC’s favor. The industry then appealed the panel’s decision to the entire D.C. Circuit and lost again. The industry then appealed that loss to the Supreme Court. The Supreme Court voted 4-3 (with Chief Justice Roberts and Justice Kavanaugh abstaining) to deny a writ of certiorari for the appeal. As a result, the lower court’s decision upholding the 2015 Open Internet Rule stands.

The FCC’s 2015 Open Internet decision declared broadband providers to be Telecommunications Services subject to the common carrier requirements of Title II of the Communications Act. Just like the telegraph and telephone companies that preceded them, internet service providers could not discriminate among those using the network. They could not, for instance, break the internet into fast lanes and slow lanes depending on how much a content provider such as Netflix paid them.

It will not surprise you to learn that in 2017, Trump’s FCC repealed the Open Internet Rule, and ruled that the agency had only minimal authority over internet networks. Under Trump’s FCC chief, former Verizon honcho Ajit Pai, the Commission announced it would exercise no oversight over internet access.

As former FCC chair Tom Wheeler explains, not only did the agency created by Congress to oversee the nation’s networks walk away from that responsibility, it joined the plaintiffs in asking the Supreme Court to overrule the D.C. Circuit’s 2015 decision.

The High Court declined to do so.

Add to that encouraging development the fact that Democrats will control the House of Representatives.

House Democratic leaders from presumptive Speaker Nancy Pelosi (D-CA,) to the new Chairman of the Energy and Commerce Committee Frank Pallone (D-NJ), to the new Chairman of the Telecommunications Subcommittee Mike Doyle (D-PA) have all been vocal supporters of strong net neutrality rules.

Reps. Pallone and Doyle will be able to conduct oversight hearings into the activities of  Trump’s FCC, and on the effect of eliminating the Open Internet Rule.

Since meaningful new legislation is highly unlikely, given the GOP Senate and Trump’s threatened veto, the Supreme Court’s refusal to overturn the Open Internet Rule means non-discrimination might survive anyway.

I say “might” because the D.C. Circuit will hear arguments in February in the lawsuit challenging the FCC’s elimination of the Open Internet Rule.  If the Circuit Court rules against the FCC,  the 2015 Open Internet Rule is reinstated—and the Supreme Court has declined to consider the matter, at least for now.

In their zeal to gut oversight of their activities, the internet networks and their Trump FCC allies may have shot themselves in the foot. There is a strong case that the Trump FCC acted in an arbitrary and capricious manner when it repealed the 2015 Open Internet Rule and walked away from any responsibility over the most important network of the 21st century. If the D.C. Circuit makes such a finding, net neutrality would once again be the law of the land. Although the Trump FCC would probably spitefully ignore its enforcement and even force adoption of a new rule to free the broadband companies, that action would simply bolster the Democrats in the House.

Research suggests that an overwhelming majority of Americans favor retention of Net Neutrality.

I favor neutering Ajit Pai.


  1. We can only hope that a Democratic House will pass many bills aimed at making life better for all, and that they will have the good sense to trumpet those bills and show clearly that the problem is in the Senate and the White House. My guess is that they will do the former, but not the latter.

  2. What is the government’s role with the internet?

    And, is there a difference between the government and those whose companies profit from the internet?

    Why were Comcast reps the most frequented visitors to the White House under Barack?

    Also, why does the CIA have monies which they invest in tech companies on the internet like Facebook? Did anybody watch the last Jason Bourne movie produced by Matt Damon in Hollywood? Very interesting perspective.

    The internet will be the source of communication for the coming revolution. If you were in power, how would you handle the internet in 2019?

    The internet used to be an open democratic network. The “government” has allowed the network to be controlled by less than a handful of corporate players. Why?

    Once again, if the USA prides itself on being the beacon of democracy, why do they restrict or control all the democratic systems like the internet and voting?

    Use your brain, not your wallet.

  3. This battle over net neutrality demonstrates just how hard it will be to undo all of Trump’s destruction of the government. Of more concern to me is the recent report on climate change and all of the damage done by Republicans in the name of making the economy great again. A booming stock market is temporary; a dead ocean is forever.

  4. Peggy; but will Trump sign them into law? With Republicans in control he is on top but with Democrats in control he is the Bottom Line…for now!

  5. The good news is that it doesn’t matter what Trump does so long as the Supreme Court is on the side of public control of net neutrality. The bad news is that Sheila’s neutering proposal, though otherwise worthy, won’t work in these days of frozen semen. There will always be those who would destroy neutrality in the name of profit and greed. Our task? Keep our eyes on those who are oblivious to the common good in the name of gain in this and every other arena open to profiteering, like, for instance, the fossil fuel industry.

  6. Steroid Capitalism demands fast lanes and slow lanes all based on affordability. Our Steroid Capitalist Society establishes a race like hurdles in the Olympics. This race is not based on physical fitness, it is based on what you can afford.

    Want to go to college or trade school the Steroid Capitalist System has a series of financial hurdles you have to jump over. Weights are added in the form of loans every step of way. You may finish the race, but you will not be able to move financially because of all the weight (loans) you still have to carry.

    Our Heath Care “System” has similar hurdles to over come. I read this shocking piece of news:

    A Michigan woman seeking a heart transplant publicized a letter she received from the Spectrum Health Richard DeVos Heart and Lung Transplant Clinic—named after the late father-in-law of Education Secretary Betsy DeVos—informing her that she is “not a candidate” for the procedure “at this time” because she needs a “more secure financial plan” to afford the required post-operation immunosuppressive medication.

    The letter goes on to explicitly recommend “a fundraising effort of $10,000” to help pay for the drugs. Rep.-elect Alexandria Ocasio-Cortez (D-N.Y.), who identified Martin’s situation as indicative of the broad failure of America’s healthcare status quo—which produces tremendous profits for insurance and pharmaceutical giants and worse outcomes than the healthcare systems of other industrialized nations.

    “Insurance groups are recommending GoFundMe as official policy—where customers can die if they can’t raise the goal in time—but sure, single-payer healthcare is unreasonable,” Ocasio-Cortez, an unabashed supporter of Medicare for All, wrote sarcastically.

    The amazing thing to me is Americans are so brainwashed, they accept this economic class based system.

  7. My background research on the Supreme Court
    decision denying Cert leaves me much more pessimistic than Ms Kennedy on the ultimate judicial outcome. We will see.

  8. November 25, 2018 at 7:58 am
    Peggy Hannon says “We can only hope”
    Todd Smekens says “Use your brain, not your wallet”

    Okay, someone please outline the steps we need to take to turn BLUE the U.S. Senate.
    What are the chances in 2020 when we will be able to deny “Four More Years” to Trump, gild the boar (bore) as it were?
    “Only hope” will not do it.
    Lots of good Americans are ready for sanity and professional, not amateur, vacationing government.
    What made Trump think stealing the election was his personal carte blanche?

  9. Revelation from Todd this morning.

    “And, is there a difference between the government and those whose companies profit from the internet?”

    In other words what’s the difference between a pledge to uphold the Constitution that begins with “We the people” vs a commitment to your job to make more money now regardless of the impact on any others ever.

    I would suggest that traditionally that distinction was immense and universal. Now it’s in extreme cases negligible for some politicos and the vast majority of them are Repubicans and in fact they are a majority of Republicans but a minority among Democrats.

    Why? Brand marketing. The GOP decided that branding themselves as that would attract a base that was large enough with some skillful voter suppression and gerrymandering to give them a sufficient market among political jobs to keep their politicians employed. In other words they became a business because doing so benefited their people.

    Democrats haven’t given in to that temptation yet even though they must play under the same rules that attracting campaign funds is at least as important in employing your politicians as what you promise and accomplish and who you choose to serve above others.

    Those dynamics will hold in my opinion until Democrats attract enough power through elections to pass campaign reform laws that take donations out of elections.

  10. I concur with Professor Kennedy: castrate the power of the FCC’s corporate lapdog, Ajit Pai. Once again, it’s government FOR the benefit of the people, not for the (further) benefit of companies. Or, to quote Bevis & Butthead, “Neuter—hehehehe”.

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