Will Congress remain Neutral on Net Neutrality?

The Federal Communications Commission (FCC) voted 3-2 last month to move ahead with its proposal for modified rules on internet traffic, which would preserve net neutrality but leave the door open for “fast lanes” of faster internet content delivery for companies that can pay. The new proposed rules are subject to a public comment period before they may be finalized, but they have already sparked outcry from major technology companies like Google and Facebook, internet service providers like Verizon, venture capitalists and investors, and small business alike.

The FCC has twice proposed rules that might allow for faster internet access for content companies that can pay for it. The courts have twice struck down those rules, determining that they contravened the 1996 Telecommunications Act and unreasonably discriminated against smaller technology companies and others unable to pay for preferential access.

The new FCC rules have drawn a strong bipartisan response from many in Congress. Senate Republican Leader Mitch McConnell and other Republicans expressed dismay over the draft rules’ potential harm to business, and prominent Democratic Senators like New York’s Chuck Schumer have also urged the FCC not to hamper net neutrality.

Congress, however, seems unlikely to do the thing most likely to prevent the FCC from making rules that could harm net neutrality: legislating. The 1996 Telecommunications Act on which the FCC rules are based was written long before the rise of Facebook, Netflix, or the majority of the makers of our internet content today. According to FiscalNote Prophecy, Congress has proposed at least 6 bills this session that would specifically enshrine the principle of net neutrality (a phrase that did not exist in 1996) into federal law. So far, however, none of those bills has passed or made significant moves forward.

While the states have no authority over what the FCC or Congress can do in this case, even they have tried to weigh in on the issue. Oregon introduced a resolution last year urging Congress to give the FCC authority to regulate internet service providers while maintaining net neutrality. This bill, however, failed to pass before the end of the session, and even if it had, it would have been a mere statement of principle rather than an enforceable legislative action.

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