The Senate Thursday — in a strict party line vote — narrowly overturned a Republican-sponsored “resolution of disapproval,” aimed at overturning new Federal Communication Commission net neutrality rules, set to go into effect Nov. 20.
The Republican-held House of Representatives voted 241-178, with 13 abstentions, against the FCC's rules last spring.
However, the 52-to-46 Senate vote amounted to a symbolic exercise, as President Obama pledged earlier this week to veto any resolution challenging the FCC’s Open Internet regulations.
The bill was introduced by Sen. Kay Bailey Hutchison (R-TX). Sen. John McCain (R-Ariz) and Daniel Inouye (D-Hawaii) abstained.
Approved by the FCC last December, the rules are designed to prevent internet service providers from using speed or normal prioritizing of traffic flow to discriminate in behalf of favored content partners. The regulations allow the FCC to impose fines and bring injunctions against companies that slow down internet service for customers who are streaming movies or downloading music.
The new rules could affect the behavior of approximately 1,100 companies, according to an FCC estimate.
Said the FCC in a statement following the vote: "Today's vote is a win for consumers and businesses. Since its adoption in 2010, the Commission's open Internet framework has brought certainty and predictability, stimulating increased innovation and investment across the broadband economy, including in mobile networks and apps. … Any effort to disrupt or unsettle that certainty, which has been widely supported by industry, will only undermine innovation and investment in this space."
Senator John Kerry (D-Mass.), Chairman of the Commerce Subcommittee on Communications, Technology, and the Internet, also applauded the vote: "This is a victory for innovation, consumers, and common sense," he said in a statement. "Today, the Senate refused to hand over the internet to a small group of corporate interests, and we need to keep up the fight because we know this isn’t the last we’ve heard of the assault on net neutrality.”
With the Congressional assault apparently thwarted, the FCC’s rules still face a slew of legal challenges, most notably from Verizon and consumer advocates.
Verizon, the sole ISP to file suit, argues the agency does not have Congressional authority to “impose these kinds of rules,” spokesman Ed McFadden told TheWrap. Furthermore, Verizon has “by and large been living under those rules for quite some time now,” McFadden said
The FCC maintains that the Congress has already vested it with purview over the internet.
The 1934 Communications Act, first signed into law by President Franklin Roosevelt and revamped in 1996 as the Telecommunications Act, charges the FCC to, among other things, protect and promote telephone and video service and competition.
The commission argues this responsibility remains despite technological advancements that changed the means of delivery: a phone call is a phone call, regardless of whether it is facilitated through traditional copper wire or IP protocol.
The Telecommunications Act also ordered the FCC to reduce any barriers blocking or degrading broadband deployment across the land.
History also demonstrates that lawmakers often lag behind technological innovation. Three decades ago technological reality forced the FCC to create cable television regulations before Congress could act.
Additionally, several consumer advocate organizations, which include the Free Press Action Fund, filed in various appeals courts against the FCC, complaining the regulations are not tough enough, especially in the realm of mobile broadband.
Free Press legal counsel Chris Riley called them “arbitrary and capricious.”
But Free press did applaud Thursday's vote. "The Senate sent a strong signal today to would-be gatekeepers that the free and open internet needs to stay that way," President and CEO Craig Aaron said in a statement. "The American public doesn't want phone and cable companies undercutting competition, deciding which websites will work or censoring what people can do online."
As for Free Press' compaints, a senior official at FCC told TheWrap the agency does not “want to impede the ecosystem in mobile.” He justified the “light touch rules” on a variety of levels. Mobile network capacity — or “pipes” — can’t carry as much data as fixed wired or wireless. In addition, the mobile industry is in a state of rapid developmental flux — the proliferation of “apps” being a prime example of an innovation that has emerged only recently.
The FCC official suggests that the dearth of filings suggests that overall the industry understands the new regulations are reasonable and would provide predictability for innovators and investors.
The FCC in approving this version of net neutrality took a number of procedural steps to overcome an earlier court ruling that questioned whether the FCC had authority to regulate the internet. While a panel of the U.S. Court of Appeals for the District of Columbia strongly questioned the FCC's authority, it ruled only that the FCC had failed to proceed properly under federal administrative procedures laws.
Another consumer group, the Media Access Project, has decided not to go ahead with its lawsuit because of the selection of the D.C. Court of Appeals as a venue, its policy director Andrew Jay Schwartzman told TheWrap.
“The D.C. Circuit Court is a very hostile forum,” Schwartzman said. He foresees a “very close case.”
Meanwhile, consumer advocacy groups hailed the outcome of the Senate vote. "Despite the cloak of anti-government rhetoric of the legislation's opponents, the reality is that a defeat of the resolution would have given control over to Big Telecom companies for their benefit on an Internet manipulated for their benefit," said Public Knowledge's president and co-founder, Gig B. Sohn.
Hearings on the suits are expected to begin in late spring or early summer.
Verizon has not decided whether to seek a stay of the rules while the litigation is pending.