How Georgia’s Senate runoff will affect net neutrality

The runoff for Georgia’s two Senate seats will have implications for a dizzying number of policy issues for President-elect Joe Biden’s administration—including the future of net neutrality.

The two Senate seats in Georgia will determine the balance of power in Congress’ upper chamber. If the Democrats take the two Georgia seats, Vice President-elect Kamala Harris would be able to break 50-50 ties in the Senate. With Democrats already controlling the House of Representatives and Biden the president-elect, that makes the potential to control the Senate all that more important.

Controlling both chambers of Congress and the presidency would give Democrats wide latitude in shaping policy, which means the runoffs between Jon Ossoff and Sen. David Perdue (R-Ga.), and Raphael Warnock and Sen. Kelly Loeffler (R-Ga.), will have an intense spotlight on them in the coming weeks.

The possibility of having that kind of power to shape policy includes what happens next with net neutrality. It’s widely assumed that a Biden administration will restore net neutrality, but the exact route that takes is still up in the air. Net neutrality is the idea that internet service providers (ISPs) can not block, throttle, or engage in paid prioritization with internet traffic. The Federal Communications Commission‘s (FCC) 2015 order also classified ISPs under Title II of the Communications Act.

Advocates have long argued that a bill in Congress could help settle the issue, instead of having the control of the FCC be the deciding factor on reinstating or repealing the rules.

If Ossoff and Warnock were to win their seats, it would give Democrats a slim majority in the Senate in addition to the House—making the chances of a net neutrality bill passing much higher than they are.

“Winning both changes the calculus. It changes the calculus likely on appointees, it changes the calculus for sure on net neutrality,” Gigi Sohn, a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy and former FCC counselor, told the Daily Dot. “Obviously I’m going to be overjoyed if the FCC reverses the reclassification decision and either reinstates the 2015 rules or adopts stronger rules. I just think to hedge against the inevitable lawsuit and to hedge against the next Republican FCC that will inevitably reverse this decision, you need congressional action.”

In 2019, Democrats in the House of Representatives passed the Save the Internet Act, a bill that would essentially codify the FCC’s 2015 Open Internet Order—which enshrined net neutrality rules under Title II of the Communications Act.

Despite passing in the House, the bill has languished in the Senate. Senate Majority Leader Mitch McConnell (R-Ky.) hasn’t brought the bill up for a vote, and Republicans have blocked several attempts by Democrats to force a vote on the bill.

If Ossoff and Warnock were to win, it appears that Democrats would have solid votes on a possible net neutrality bill.

Warnock signaled his support for net neutrality just last month. In a tweet, the Democratic candidate said the U.S. needed to “re-establish net neutrality protections.”

“You should be in control of how you access and use the Internet, not corporations. We need to re-establish net neutrality protections,” Warnock tweeted on Oct. 24, just ahead of Election Day.

Meanwhile, Ossoff also has also shown support for net neutrality.

In a survey conducted by Common Cause’s “Our Democracy 2020” project, Ossoff said he supported the Save the Internet Act.

Ossoff’s campaign did not return a request for comment by the Daily Dot. Warnock’s campaign said the candidate’s tweet showcased his position on the issue.

But, advocates say a bill doesn’t necessarily hinge on Democratic control of the upper chamber—although it would mean there are fewer obstacles to overcome.

While a Democrat majority would make a bill passing easier—likely even, given the enthusiastic support the issue has generated from party leaders—there is some precedent for bipartisan support.

In 2018, the Senate passed a Congressional Review Act (CRA) measure that would have overturned the FCC’s repeal. Three Republicans—Sen. Susan Collins (R-Maine), Sen. Lisa Murkowski (R-Alaska), and Sen. John Kennedy (R-La.)—joined Democrats in voting in favor of it.

While passing in the Senate, the CRA effort died in the House, which was controlled by Republicans at the time.

Unlike some of his Republican colleagues, Perdue voted against the CRA effort. Loeffler, who was appointed to the Senate in 2019, was not in the chamber during that vote. Representatives for Perdue and Loeffler did not respond to requests for comment.

While there has been some bipartisan movement in Congress in the past, Craig Aaron, the co-CEO of Free Press Action, said Democratic control means it’s more likely that bills like the Save the Internet Act come up for a vote—even if there is Republican support.

“Obviously we saw the Save the Internet Act pass the House, but a year earlier we did actually see it move through the Senate with some Republicans coming on board,” Aaron said, referring to the CRA efforts. “With Democratic control, those kinds of votes become very possible. With Mitch McConnell in control, and despite how popular net neutrality is among Republicans, it’s a graveyard—as it was for the last few years.” 

Evan Greer, the deputy director of Fight for the Future, said she hoped that a Biden-led FCC would move forward with reversing the net neutrality repeal before Congress took up a potential bill, adding that advocacy groups would be on the lookout for “bad” legislation.

“When the rules were repealed, there was such massive and overwhelming backlash from across the political spectrum that we did see Republicans cross the aisle to vote against the repeal and vote for the restoration of the rules. I think in a situation where we have strong rules at the FCC, and we have a strong law in California, the battlefield is just different, and the calculus is different,” Greer said. “With enough off a grassroots push we could get good legislation passed even if Republicans maintain control of the Senate after whatever happens in Georgia.”

Whether or not a bill eventually finds its way to the floor, it is expected that a Biden FCC would take up net neutrality early on in its tenure.

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