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It ain’t over: Net neutrality advocates are preparing a massive new war against Trump’s FCC

The fight is coming to the courts, to Congress, and even to the 2018 election.

A net neutrality protester holds up a sign that reads, “Protect equal access = information. Protect U.S. innovation, save the internet.” Chip Somodevilla / Getty

The fiercest advocates for net neutrality are readying a new war in the nation’s capital, hoping to restore the rules that the Trump administration just eliminated — and galvanize a new generation of younger, web-savvy voters in the process.

Not even a month after the Federal Communications Commission voted to scrap its requirement that internet providers treat all web traffic equally, an armada of tech startups, consumer activists and state attorneys general are preparing to take the agency to court.

The expected, early challengers include crafts marketplace Etsy, which confirmed to Recode this week that it would soon sue the FCC. Lobbying groups representing companies like Facebook and Google also plan to intervene in some fashion.

Meanwhile, Democratic lawmakers are angling to force Congress to debate the future of net neutrality rules. Even if they fail, they have another goal in mind: They hope to turn net neutrality into a political rallying cry, mobilizing droves of young voters to cast ballots during the 2018 election, when the composition of the U.S. Capitol is up for grabs.

“From my perspective, I think it’s a very powerful issue,” Sen. Ed Markey, a Massachusetts Democrat leading the charge, told Recode. “The Republicans are on the wrong side of history. And there is a very high political price to pay for those who are on the wrong side of history.”

“I’ve never seen an issue that is so compelling for teenagers,” added his peer from Hawaii, Democratic Sen. Brian Schatz, in a later interview. “And that’s why I believe that we’re going to win on this eventually. Because you can’t find a kid on Instagram ... who’s not angry about what [the FCC] just did to the internet.”

“They may not understand every nuance of the policy but they know net neutrality is what they have now, and they know it was just taken away,” Schatz continued. “And they know it was the Republicans.”

Political purgatory

For the moment, though, net neutrality advocates can’t just rush into battle.

To be sure, the FCC and its Republican leader, Ajit Pai, voted in December 2017 to scrap the open internet protections implemented under former President Barack Obama. Those rules treated broadband providers like old-school telephone companies, and in practice they prevented the likes of AT&T, Charter, Comcast* and Verizon from blocking or slowing down access to websites and services. The Obama-era directives further prohibited ISPs from charging web companies for faster delivery of music, movies or other content — arrangements known as “fast lanes” to its critics.

For the full repeal to be final, however, the FCC still has some additional administrative work to do. Chiefly, it has to publish its order in a little-known government repository called the Federal Register. And only then can Pai’s critics, in Silicon Valley and beyond, embark on their efforts to repeal the FCC’s repeal, so to speak.

In other words, it could be many months before anyone can even file a lawsuit challenging the telecom agency in federal court — and much longer before a judge actually hands down a decision.

FCC Chairman Ajit Pai stands at a podium in front of the Federal Communications Commission plaque Alex Wong / Getty

The FCC, for its part, only released the final text of its net neutrality repeal late Thursday.

Still, a slew of players are expected to sue as soon as they can, including activist groups like Free Press and Public Knowledge and a torrent of state attorneys general, led by New York.

They are prepared to argue that Trump’s FCC acted arbitrarily and capriciously in suddenly upending the agency’s last set of rules. And they also plan to needle Pai for proceeding with his repeal despite amassing a record-breaking 21 million comments from the public — some of which, critics contend, came from fraudulent sources.

Tech companies are preparing their own legal salvos. Etsy, for example, plans to file a lawsuit arguing that its “seller community is directly impacted by the order,” revealed Althea Erickson, the head of advocacy and impact at the company, in an interview with Recode on Wednesday.

For years, Etsy has urged the FCC to adopt and maintain strong net neutrality rules. About 30,000 sellers had urged Pai to stand down in the months before the agency voted on party lines to proceed with its repeal, Erickson said.

Mozilla, meanwhile, is “figuring out the best way to engage,” and it could sue or otherwise participate in a legal challenge to the FCC, said Heather West, a senior policy manager there. Others, like Netflix, did not reveal their plans when contacted this week.

Major tech giants, particularly Facebook and Google, aren’t expected to sue on their own. Technically, they can’t: They didn’t file comments under their names when the FCC began debate on its repeal, meaning they aren’t eligible to petition a federal judge.

Instead, the biggest brands in Silicon Valley are likely to strike through their lobbying organizations, which did participate in the agency’s debate. Those include the Washington, D.C.-based Computer and Communications Industry Association, or CCIA, where a spokeswoman told Recode this week that it is deciding “whether we will petition for review or intervene."

Petitioning entails leading a lawsuit; intervening allows tech companies to offer supporting arguments from the sidelines. Another group, the Internet Association, pledged to “support judicial or legislative actions that preserve enforceable net neutrality protections,” said spokesman Noah Theran. The organization, which represents companies like Amazon, Facebook, Google, Netflix and Twitter, did not elaborate on its specific role in the coming legal battle.

“The internet is oxygen to millennials”

On Capitol Hill, meanwhile, Senate Democrats are seething — and almost ready to strike.

At the surface, the party’s tech leaders say they have a plan: It begins with the Congressional Review Act, a little-known law that allows lawmakers to seek a debate, then vote, to overturn rules proffered by federal regulatory agencies.

Senator Brian Schatz sits at a senate confirmation hearing while Senator Ed Markey stands behind the place labeled “Mr. Markey.”
Senator Brian Schatz (left) and Senator Ed Markey (center)
Mark Wilson / Getty

Republicans tapped the so-called CRA throughout 2017 to undo a number of the Obama administration’s regulations — everything from climate change to unemployment benefits to online privacy. The latter repeal triggered a major web backlash, as users last year feared that their internet providers might start selling their web-browsing histories to advertisers.

This time, though, it’s Democrats taking aim. And even though they don’t control either chamber of Congress, they only need 30 votes to force the chamber to begin debate about the future of the open internet.

From there, net neutrality supporters like Markey dare Republicans to vote against restoring the FCC’s last round of rules. He and his Democratic peers believe the GOP is bound to incur the wrath of younger voters — and they hope millennials will exact their revenge by turning out on Election Day this November.

“I believe net neutrality will motivate voters in a powerful way,” Markey said. “The internet is oxygen to millennials. They have a whole sense as to how it should be organized. And the repeal of net neutrality goes right to the core of their own beliefs, about the need for millennials to control their own lives and not cede control to these larger forces in society.”

Of course, younger voters tend to be fickle; their turnout at the polls is never guaranteed. Across the electorate, meanwhile, health care, national security and immigration issues perhaps loom larger for most Americans than net neutrality. That’s why consumer groups like Fight for the Future have embarked on a new, national text-message campaign to keep the issue at the front of Americans’ minds in the months before Election Day.

“News outlets keep asking whether net neutrality will be an election issue in 2018,” said Evan Greer, the group’s leader, in a statement. “We are going to make it one.”

To Hawaii’s Schatz, the issue might galvanize “infrequent voters and turn them into motivated voters.” If that helps Democrats recapture Congress, they could then seize on their newfound legislative dominance to write their own, lasting net neutrality law, perhaps putting an end to decades of debate at the FCC and in federal courtrooms.

“We have had a challenge turning out young people in the midterms, and this is something that motivates young people,” Schatz said. “When you start messing with their internet, politics is no longer abstract. It’s a very, very serious and personal matter to mess with someone’s internet.”

* Comcast, through its NBCU arm, is an investor in Vox Media, which owns this website.

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