The Supreme Court and House Democrats breathe new life into net neutrality

The activities of the past week have reshaped the future of network neutrality and the strategy for protecting that future. On Nov 5, the Supreme Court declined to review the decision of the DC Circuit Court that twice upheld the 2015 Open Internet Rule. The second development was the Democrats taking control of the House of Representatives. 

On Feb 1, 2019 the DC Circuit will hear oral arguments on the lawsuit challenging the Trump Federal Communications Commission’s elimination of the Open Internet Rule. Here is where things start to get interesting in light of the recent Supreme Court decision. If the DC Circuit rules against the FCC and vacates the 2017 elimination of the rules, then the 2015 Open Internet Rule is reinstated—and the Supreme Court has declined to consider the matter for now. There is a strong case that the Trump FCC acted in an arbitrary and capricious manner when it repealed the 2015 Open Internet Rule and walked away from any responsibility over the most important network of the 21st century. If the DC Circuit makes such a finding, net neutrality would once again be the law of the land. Although the Trump FCC would probably spitefully ignore its enforcement and even force adoption of a new rule to free the broadband companies, that action would simply bolster the Democrats in the House.

In the meantime, the House Democrats can hold a series of hearings to bring forth into the public record the information the Trump FCC and the Republican-led Congress has chosen to ignore. Any push for meaningful legislation will probably meet the opposition of the companies and their Republican allies, but the recent Supreme Court decision and a Democratic House-led push for truth will keep net neutrality alive.

[Tom Wheeler served as the 31st chairman of the Federal Communications Commission from 2013-2017.]