Will states seize the opening if net neutrality rules are resurrected?

11 June 2018. On this date the decision by the Federal Communications Commission that repealed the 2015 Open Internet Order will go into effect. Democratic members of the United States Senate hope to vote on a resolution that nullifies this recent decision by the Commission. In other words, the Democrats want to roll back to the way things were in 2015 with the Commission regulating broadband internet access service as if broadband access was a telephone service.

The Senate’s vote, expected to take place the middle of next week, is expected to go nowhere in the U.S. House of Representatives where Republicans hold firmer control. Partisanship is expected to rein supreme. And even if the House were to join the Senate in condemning the Commission’s decision to repeal net neutrality regulations, President trump is expected to veto the bill, sending it back to Congress where an override of the veto has next to no chance of happening.

For students of federal government, this congressional review action demonstrates a major weakness in the legislative branch of federal government. Congress may hold the purse strings, but when it comes to wielding any power, Congress is slow, its actions cumbersome. It is no wonder it gets accused of doing nothing. It is not that it doesn’t try. Congress is designed not to usurp the power of the executive, but simply to keep him or her in check.

Congressional Democrats could have expended energy drafting legislation that not only codified open internet principles but addressed transparency and privacy of consumer data handed over to social media firms such as Facebook or Twitter.  But when it’s time for political theater, no place is better than the chambers of Congress. Senator McCarthy’s search for communists. The Warren Commission. The Nixon impeachment. Iran/Contra hearings on Oliver North’s gun trading in Nicaragua. The Clinton impeachment. All great theater. Democrats may want to add to this list a vote on net neutrality.

Unfortunately for the Democrats, Congress will slide into a couple summer recesses mixed in with campaigning for the November 2018 midterm elections. Except for uninformed millennials and assorted nerds, there will be little attention paid to net neutrality.

Twenty-two states will give repeal the college try, however. A lawsuit filed by a number of state attorneys general hopes to show that the Commission’s action was arbitrary and capricious. I suspect that even if the states were successful in their attempt to overturn the repeal via the courts, I don’t see them doing much on the state utility commission level to regulate broadband access providers.  Just let their states AGs expend resources to tackle on a case-by-case basis complaints alleging throttling, blocking, and lack of transparency on the part of providers. Regulating broadband as a telephone service is fun to say and probably gets a few voter brownie points, but states have spent the past two decades moving away from utility-style regulation of phone services and are not about to roll the clock backward.

Besides, the old heads like me who were members of the public utility commission staffs that did the regulating have moved on and aren’t interested in revisiting the ghosts.

 

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