The GOP-LED Federal Communications Commission this week released the first details of its long-anticipated plan to roll-back Obama-era net neutrality protections. The good news for net neutrality advocates: You can already voice your official displeasure on the FCC’s proposal. The bad news: It’s quite possible no one will listen. The FCC’s Republican commissioners never supported the net neutrality rules, and they’re not likely to change their minds. Still, the fight to save net neutrality isn’t over.
Technically, nothing has been formally proposed. What FCC chair Ajit Pai has filed is what’s called a “notice of proposed rulemaking”—basically, a call for feedback from experts and the public about what the FCC should actually do. Before the notice is even formal, the FCC must approve it.
At issue is the Open Internet Order, a sweeping set of policies passed back in 2015 aimed at ensuring net neutrality, the idea that internet service providers should treat all traffic equally. The rules ban your home broadband provider from degrading your Netflix streams to encourage you to buy cable television instead, and prohibit your mobile carrier from blocking Skype. It also reclassified internet providers as “Title II” common carriers, much like telephone companies, a designation that gave the FCC legal authority over their business practices.
The GOP has been trying to kill the Open Internet Order since before it was even voted into effect. Ted Cruz went so far as to call it Obamacare for the internet. Net neutrality has become a deeply partisan issue, with Democrats arguing that the rules protect both consumers and internet-based companies from mistreatment by broadband providers and Republicans arguing the rules are burdensome, restricting both the expansion of broadband and the types of services that internet providers can offer.
Yesterday’s 57-page notice is light on specifics. Mostly, it’s a list of things that the commission would like to get feedback on, like which, if any, of the rules it should keep. But it’s clear that the FCC plans roll back Title II status, returning internet providers to the status of “information services” as opposed to telecommunications services. And without that status, the FCC won’t actually be able to enforce most of the other rules imposed by the Open Internet Order. So long net neutrality.
How We Got Here
There was a time when net neutrality wasn’t quite so partisan. The Bush-era FCC made an attempt to codify the idea that internet providers shouldn’t block legal content or applications in a policy statement back in 2005 but didn’t go so far as to reclassify providers as Title II carriers. The agency put that policy into action in 2008, when it ordered Comcast to stop throttling BitTorrent traffic. Comcast sued, arguing that the FCC didn’t have the authority to make any such order. The courts agreed.
In 2010, the FCC created a more formal set of policies to protect consumers from blocking and throttling. Those were struck down by a court in 2014, this time after Verizon sued. The court ruled that in order to impose sweeping rules banning blocking, the FCC would need to reclassify providers as Title II common carriers.
Services deemed by the FCC to be common carriers must, under Title II of the Telecommunications Act, follow more strict rules to prove that they operate in the public interest. The FCC waived some of these regulations in the Open Internet Order, as the agency did when it classified cellular phone service providers as common carriers. But the agency still has broad authority to decide what does or doesn’t count as discriminatory behavior on broadband networks. By contrast, it has much less authority over information services. Without Title II, the FCC doesn’t actually have the authority to enforce the Open Internet Order’s net neutrality rules.
Pai has argued repeatedly that the internet flourished during the years before providers were classified under Title II. But YouTube, Netflix’s streaming service, and Skype all rose to prominence during the period that the Bush-era policy statement was in effect. Without Title II, the next wave of internet services might not enjoy those types of protections.
What Happens Next
Once Pai’s notice is approved, which is likely to happen at the FCC’s open meeting May 18, the public will have 60 days to file comments. Then people will have another 30 days to respond to the comments. The FCC’s staff will then have to turn all that feedback into a final order that commissioners will vote on. That process could take months, but based on Pai’s eagerness to re-reclassify broadband providers, you can expect action on that sooner than later.
Pai took the unusual step of releasing the entire notice to the public before a vote had happened, which is great for transparency. But don’t get too excited. Senior FCC officials told reporters during a press call yesterday that they won’t necessarily be swayed by public opinion. The call for comments is not, they said, a public opinion poll. Fair enough: Sometimes federal agencies have to make unpopular decisions. And if the FCC does vote to scrap net neutrality, it could be a very unpopular decision indeed. Despite growing polarization, a poll conducted by the University of Delaware found that the majority of both Democratic and Republican voters support some form of net neutrality protections.
Net neutrality advocates may have better luck in court than in petition the FCC. Federal agencies must explain sudden policy reversals. If the courts decide that the FCC has acted in an arbitrary or capricious manner, the Title II reversal could be struck down. FCC staff, however, say they are confident that won’t happen. Pai has offered up data suggesting that companies are spending less money building and maintaining their broadband networks as a result of the Title II reclassification, which they believe should be enough to satisfy any legal challenge. Whether those controversial investment stats will be enough to sway the courts remains to be seen.
Regardless of what the courts decide, Congress has the authority to impose—or revoke—net neutrality protections. On one hand, that might not bode well for the future of net neutrality. But the comparison to Obamacare may be more apt than anyone realized. Just as congressional Republicans found it hard to repeal and replace the Affordable Care Act, they Republicans may find it hard to jettison net neutrality protections. Unlike the FCC, they do answer directly to the public.