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Georgia’s runoff may have saved net neutrality

Throttling could be much harder under a Democratic Senate

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Illustration by Alex Castro / The Verge

Tuesday night was a good night for Democrats.

Votes are still being tallied and no one has conceded, but it seems all but certain that Democratic candidates Raphael Warnock and Jon Ossoff have won election to the US Senate, putting the chamber under 50-50 Democratic control. It’s a huge shift in what’s possible for Democrats and policymakers are already discussing policies that seemed impossible on Monday, like $2,000 direct stimulus payments or a new voting rights act.

But while the wins will have impacts across the Democratic platform, they may have particularly strong effects on net neutrality. Before Georgia, net neutrality advocates were facing a gridlock in Congress and the frightening possibility that the incoming president wouldn’t be able to appoint his own FCC commissioners. But as the Senate falls back under Democratic control, the possibilities for net neutrality have expanded dramatically. Now, Democrats can push for more progressive FCC nominees that will reinstate the net neutrality rules from 2015, or even push for legislation that would write net neutrality into law. Flipping these two Senate seats could make the difference between keeping net neutrality in a permanent legal limbo and making it the law of the land.

“The FCC shouldn’t wait for Congress”

Already, net neutrality advocates are barely containing their excitement. Reached for comment, Fight for the Future’s Evan Greer laid out a laundry list of progressive goals that can now be pursued, from overturning FCC Chairman Ajit Pai’s order to implementing more aggressive privacy and connectivity policies. 

“If Democrats take the Senate they should move quickly to confirm an FCC chair who will make it their first order of business to restore the Title II open Internet protections,” Greer said in a statement. “But they should also do more than that. The FCC can and should take steps to protect people’s privacy, and to ensure that everyone can afford Internet access during a time when many are working from home and sending their kids to school online.”

In a similar vein, Public Knowledge CEO Chris Lewis focused on getting a fair hearing for bills like the Save the Internet Act, which have largely been blocked by the Republican Senate. “The Senate has made noise about enshrining rules into law for the past two years without any action — not even a public hearing,” said Lewis. “The FCC shouldn’t wait for Congress to grow the political will to act to restore strong net neutrality rules. There is broad support for this in the country across partisan divides.”

The net neutrality fight has mostly been in a stalemate since 2017, when Pai passed the Restoring Internet Freedom Order, repealing the 2015 Open Internet Order on a straight party-line vote. There were significant legal challenges to Pai’s order — most notably from Mozilla — but the basic facts of the order remained in place. Under Pai’s rule, the FCC doesn’t have much authority to regulate practices like throttling, zero-rating, and data caps. As long as that order is in place, fighting carrier misbehavior will fall to the FTC and the states, both of which are stretched too thin to put up much of a fight.

new legislation could write Title II rules permanently into law

In a normal congress, a Democratic president would spell trouble for Pai’s order. When he takes office, Biden will have control over FCC appointments, which typically means Democrats would control the commission’s majority (determining the chairperson and three of the five seats on the commission). Restoring the Open Internet Order would be as simple as appointing progressive commissioners and holding a vote. But Republicans were preparing to block FCC appointments in exchange for concessions, effectively giving them veto power over the agency.

The result was a tough choice for the Biden administration: either nominate moderate Democrats who wouldn’t repeal the Pai order or resign themselves to a gridlocked FCC without the vote to do anything at all. It was a grim choice for net neutrality advocates; either option would leave the Pai order in place.

But this morning, the state of play looks very different. With Warnock and Ossoff in the Senate, the chamber will be split 50-50, with VP-elect Kamala Harris passing the deciding vote. That will give Democrats control of crucial oversight committees and make it far easier to shepherd Democratic nominees through confirmation hearings. In short, Biden can nominate who he wants, and Senate Democrats can make sure they’re legally appointed.

How much will Biden care about net neutrality?

Progressive ambitions don’t stop at the FCC. A new FCC order would put net neutrality rules in place, but it could still be overturned by the next Republican president, and flipping back and forth with each administration isn’t anyone’s ideal telecom policy. The real win would be new legislation that would write Title II rules permanently into law, something that couldn’t be overturned by the next Republican FCC. House Democrats have passed bills to do just that, although they crashed as soon they hit the Republican Senate. It’s hard to say whether moderate Democrats like Kyrsten Sinema (D-AZ) or Joe Manchin (D-WV) would go along with such a move, and a compromise bill might end up with something much milder than full Title II protection. But for the first time, that kind of lasting legislative victory is possible, and it will be a major focus for advocates over the next two years.

There are still some important caveats to this victory. Democratic control of the Senate isn’t a done deal: neither Republican candidate has conceded, and it’s not settled what kind of power-sharing arrangement will emerge from the 50-50 Senate. There is still room for all kinds of obstruction, and Senate Democrats shouldn’t count chickens before they’re hatched.

Most importantly, we don’t know how much the Biden administration will care about net neutrality. It was a non-issue in the campaign, crowded out by the chaos of Trump, and the president-elect hasn’t made any clear statements about where he stands on it. As soon as the election was over, right-wing analysts were predicting that Biden would abandon the fight entirely, finding it not worth the political costs. Progressives will keep fighting, some from inside the White House, but it is too early to know if they’ll win. Georgia has given Biden the chance to save net neutrality; now the question is whether he will take it.