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Pressure builds on Biden, Democrats to revive net neutrality rules

The party is under pressure to deliver on its past promises to restore open-Internet protections, but doing so — at least at first — may not be easy

Jessica Rosenworcel, the acting chairwoman of the Federal Communications Commission. (Jonathan Newton/The Washington Post)

More than three years ago, Jessica Rosenworcel could only react in horror as her Republican counterparts on the Federal Communications Commission voted to repeal the U.S. government’s net neutrality rules.

“There is no shortage of people who believe Washington is not listening to their concerns, their fears and their desires,” Rosenworcel, a Democratic member of the FCC, said in a speech at the time. “Add this agency to the list.”

Now, Rosenworcel controls the very commission she once criticized for failing to heed the public’s outcry. And her stewardship — along with Democrats’ broader resurgence in Washington — has brought new, sky-high expectations that the party deliver on its past promises, restore open-Internet protections and resolve one of the most intractable policy battles in the digital age.

For more than two decades, Democrats and Republicans have warred over net neutrality, the idea that Internet providers should treat all Web traffic equally. At a time when the pandemic has forced Americans to learn and work online, Democrats see the Internet as an indispensable utility and stress that in some cases, it should be regulated like one. Republicans generally balk at that approach, siding with telecom giants including AT&T, Comcast and Verizon that say they believe in the principles of Internet openness — but oppose stiff federal rules to enforce them.

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The fight has outlasted Democratic and Republican presidents, spawned a seemingly never-ending series of court challenges and garnered the sort of national attention that might seem unlikely in a wonky policy war. Fearful about slow speeds and other online disruptions, millions of Americans directly pleaded with the FCC to preserve its rules before the agency under President Donald Trump ultimately voted to repeal them in 2017.

Reinstating those protections may prove difficult for Rosenworcel and her Democratic peers, at least at first. The FCC, with two Democrats and two Republicans, is politically deadlocked, lacking a fifth member, and Congress is otherwise distracted in the midst of the coronavirus pandemic. The fiercest advocates for net neutrality, however, say they plan to press the issue — and push newly powerful Democrats under President Biden to act as soon as they can.

The FCC declined to comment for this story.

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For Democrats, net neutrality has long been counted among their signature tech policy priorities. The party’s past presidential candidates, including Biden, have endorsed open-Internet rules, and Democrats’ official platform in 2020 once again included a commitment to penalize “broadband providers who violate net neutrality principles.”

The U.S. government imposed its toughest-ever open-Internet protections under President Barack Obama, aiming to ensure that Internet providers could not block or slow down their customers’ ability to access even the most data-intensive sites and services. But the rules proved short lived: Trump’s election in 2016 resulted in their repeal, as the FCC under GOP Chairman Ajit Pai argued that the regulations had prevented telecom giants from investing fully in their networks.

Democrats soon embarked on a wave of largely ill-fated efforts to restore the digital safeguards. Mozilla, the maker of the Firefox Web browser, joined net neutrality advocates in filing a lawsuit to unwind the Republican FCC’s repeal — only to have a federal court rule largely in Pai’s favor. Democratic policymakers, meanwhile, set about trying to codify net neutrality protections into their states’ laws nationwide. But the Trump administration sought to block these local efforts, even filing a lawsuit to stop a potent net neutrality law from taking effect in California. Federal lawmakers in Congress took small steps toward undoing Pai’s work yet fared no better in crafting their own lasting solution to the fight.

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But the outcome of the 2020 election — sending Democrats to the White House and majorities in Congress — has injected new optimism into these long-stalled efforts. At the FCC, supporters say they have gained a powerful leader in Rosenworcel, whom Biden named as acting chairwoman last week. The president is expected to select her or another fervent net neutrality advocate to lead the agency on a permanent basis in the coming months.

The process of naming that fifth member of the FCC, either a new Democratic chair or commissioner, is likely to span months — preventing Rosenworcel from forging ahead as interim leader for the time being. In the meantime, advocates said they plan to dial up the pressure, aiming to ensure Biden makes a pick who supports their cause and Senate Democrats act quickly to return the commission to its full strength.

“It should be clear to Democrats they have absolutely no excuse to not put someone in who is a champion for Internet freedom and the public interest,” said Evan Greer, the deputy director of the advocacy group Fight for the Future, a progressive organization that supports the rules. “We are expecting them to move on this as quickly as possible.”

The Biden administration could open other legal avenues for net neutrality even in the absence of a Democratic majority at the FCC. The Justice Department, for example, is expected to either withdraw its lawsuit challenging California’s net neutrality protections or switch sides in the case, according to two people with knowledge of the agency’s thinking, who spoke on the condition of anonymity to describe private conversations with Biden’s team. That could allow California to forge ahead once again on net neutrality — and perhaps inspire other states to do the same.

“California is not alone,” said Harold Feld, senior vice president of Public Knowledge, which promotes open-Internet policies. “If the Biden administration pulls out, that will send a clear signal to other states we’re good with this. You’re still going to have to fight against the cable companies, but I think it will breathe new life into other state efforts.”

A dozen House Democrats earlier this month asked the Department of Justice and Biden’s pick for attorney general, Merrick Garland, to pull the lawsuit. The Justice Department declined to comment. A judge is set to hold a status conference on the case next month.

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California’s telecom regulators separately asked a federal appeals court earlier in January to throw out a critical portion of Pai’s net neutrality repeal. The short petition filed by the California Public Utilities Commission said that Pai had acted in an “arbitrary, capricious” manner in the way he scrapped open-Internet protections. The state agency declined to comment on the filing.

In seeking to restore tough net neutrality rules, however, the Democratic Party’s leaders in Washington threaten to reopen a war with the telecom industry.

AT&T, Charter, Comcast and Verizon each contend they do not block, throttle or otherwise interfere with Web traffic even in the absence of regulation. Net neutrality supporters feared a slow, patchy Web would emerge in the three years after Pai’s repeal — but the industry’s foremost advocates say the worst predictions never came true.

“What has the last year told us? The Internet is open, and our broadband networks are strong, resilient and up to the job of providing the streaming, Zooming, telehealth and increased connectivity needs brought about by the pandemic,” said Jonathan Spalter, president of the trade group USTelecom.

Spalter added in a statement that policymakers should focus instead on boosting Internet access even further — and not “restart this divisive, and frankly outdated, battle” over net neutrality.

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There still have been scattered incidents seen as net neutrality violations in recent years — Verizon, for instance, imposed wireless data restrictions on California firefighters battling an inferno in 2018, prompting the company to later apologize. Otherwise, open-Internet supporters argue that the digital-doomsday scenarios never arrived precisely because of their continued political pressure and sustained public advocacy on the telecom industry.

“They were on their best behavior because they knew any action to confirm the concerns would precipitate further action,” said Ashley Boyd, the vice president for advocacy and engagement at Mozilla. She said that open-Internet advocates served as their own “watchdog” at a time when the FCC had been absent.

“We need to focus on net neutrality,” she added about the fight to come, “and get it secured because of how fundamental it is.”