Net Neutrality: FCC’s Scuppering Will Stand; Meanwhile, India Adopts World’s Most Sweeping Protections

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

US advocates for net neutrality hold onto slender hope that the current Congress might overturn last May’s FCC regulation that scuppered existing net neutrality protections when the first House Republican signed onto support pending legislation.

Ars Technica reports in Bill to save net neutrality gets first Republican vote in US House:

US Rep. Mike Coffman (R-Colo.) today announced his support for the bill. Coffman is signing a discharge petition that would force the House to vote on a Congressional Review Act (CRA) resolution; the resolution would reverse the Federal Communications Commission’s repeal of its net neutrality rules.

The US Senate approved the CRA resolution in May, with votes from all members of the Democratic caucus and three Republican senators. While 176 House Democrats have signed the discharge petition, Coffman is the first House Republican to do so.

“I hope more Republicans will join this effort and stand on the side of American families who rely on and overwhelmingly support a free and open Internet,” said Sen. Ed Markey (D-Mass), who submitted the CRA resolution that passed in the Senate.

The petition needs 218 signatures, and Republicans hold a 236-193 majority in the House, so it’s still a long shot. But advocacy groups that support net neutrality praised Coffman for becoming the first House Republican to sign the petition.

(This account in Wired is more skeptical about exactly what Coffman hopes to achieve; A HOUSE REPUBLICAN JOINS THE FIGHT TO SAVE NET NEUTRALITY).

Trump and Congressional Republicans previously deployed CRA to overturn late-inning regulatory decisions made  sixty “session days” before his Inauguration Day– June 20, 2017. These provisions allow for a simple overturn of a new regulation, by majority vote, and presidential assent. As I wrote in this February 2017 post, Republicans Deploy CRA Authority to Roll Back Regulations:

The CRA allows for Congress, by simple majority votes in both houses, to pass legislation rescinding any regulation that was finalized in the preceding 60 session days. The relevant legislation– a CRA resolution of disapproval– is brought to the floor of each chamber using expedited procedures, without need for prior committee consideration, and is not subject to Senate filibuster procedures.

…As is the case with other legislation, the CRA resolution must be presented to the President for signature or veto. In the case of a veto, the regulation could still be voided if a 2/3 majority in each house votes to override the presidential veto. Once the regulation is successfully rescinded, the regulatory agency is barred from bringing the rule back in “substantially the same form”, absent new authorizing legislation.(see these previous posts for more on how CRA has been used: Trump and Congress Use Congressional Review Act to Roll Back 14 ‘Midnight’ Rules; More to Follow?; Republicans to Use CRA to Roll Back ‘Midnight’ Rules and Benefit Oil Companies).

Later still, CRA was invoked to overturn the Consumer Financial Protection Bureau’s (CFPB) ban on mandatory arbitration agreements in consumer financial contracts (see this post, RIP, CFPB Mandatory Arbitration Ban, which includes links to other relevant coverage).

CRA procedures will not save the day for US net neutrality; this issue will almost certainly be revisited if Democrats manage to control Congress (and especially, if they recapture the Oval Office).

India’s Net Neutrality Framework

Meanwhile, Last week, India’s Telecoms Commission approved the recommendations made in November 2017 by the Telegram Regulatory Authority of India (TRAI), thus enshrining some of the world’s strongest net neutrality provisions (see Net neutrality gets the okay from Telecom Commission).

As The Hindu newspaper editorialised earlier this week in A welcome move: On India’s net neutrality regulations:

In a vital decision that will help secure the rights of Internet users in the country, the Telecom Commission has approved the recommendations of the [TRAI]  on net neutrality. By endorsing steps that call for amendments to access services licences for Internet Service Providers (ISPs) and Telecom Operators, the Commission has made it clear that any violation of net neutrality will be treated as a violation of the licence conditions. It has said that some specialised and emerging services such as Voice over Internet Protocol (VoIP) may be exempt from the non-discriminatory principles, but these cannot be at the cost of the overall quality of Internet access. Combining this approval with the fact that TRAI had barred telecom service providers from charging differential rates for data services (zero rating, for example), India will now have among the strongest net neutrality regulations. This is as it should be. Net neutrality is the basic principle of an open Internet that does not allow for content discrimination by ISPs. The user is free to access any web location at the same paid-for speed without any discrimination by the ISP.

This proviso has helped democratise the Internet and undergird its growth from a networked system of computers that enabled e-commerce, social interaction, knowledge flow and entertainment, among other functions. Internet pioneers — including World Wide Web inventor Tim Berners-Lee and Transmission Control Protocol/IP Protocol co-inventor Vint Cerf — have consistently maintained that the principle of net neutrality is built into the structure of the Internet itself. The layers and protocols for connectivity via the network have been erected in such a way that access is seamless irrespective of the nature of the physical infrastructure of the network. It is to the credit of the Telecom Commission and TRAI that this principle has been upheld in India — in contrast, in the U.S., on President Donald Trump’s watch, the Federal Communications Commission repealed net neutrality regulations that had been put in place by the Barack Obama administration. The repeal was ostensibly to allow ISPs and broadband providers to invest in new technology although evidence shows that such investment was not affected by the regulations. The other argument for the repeal has been a functional one, suggesting that the Internet is very different today, controlled by a handful of big companies, unlike the much more egalitarian environment earlier; and that therefore, the principle is redundant now. This is misleading. In India, for instance, the steep growth in Internet access and use has allowed for newer services to thrive. The government should now ensure that net neutrality is followed in practice.

As I wrote in a column  in the 18-31 December 2017 edition of Business India, India’s leading business magazine (to which unfortunately, there’s no linkable on-line version), just after the TRAI framework and FCC intentions were more or less simultaneously (and coincidentally) announced:

The contrast between American and Indian regulatory approaches certainly seems to increase India’s relative attractiveness as a place to launch internet start-ups. Yet relative attractiveness isn’t the main issue here. Few prospective entrepreneurs face a simple choice of deciding whether to launch an internet-based business in the US, or in India. Net neutrality is only one of many issues to be considered in establishing an internet company.

…

But, there’s no doubt that TRAI has taken a huge step forward toward fostering home-grown internet start-ups, at the same time the FCC has chosen to step decisively back and allow ISPs and existing internet businesses to exploit their innate competitive advantage in shaping the future structure of the internet.

I see no reason to back away from that earlier conclusion, and instead reaffirm it here.