FCC Repeals 2015 Net Neutrality Protections

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Round-Up for the Week of December 11-15, 2017

On a partisan, 3-2 vote, the Federal Communications Commission adopted the Restoring Internet Freedom Order, reversing the Open Internet/net neutrality protections the FCC adopted in 2015. According to the FCC, the Declaratory Ruling, Report and Order, and Order adopted by the Commission takes the following steps:

Declaratory Ruling

• Restores the classification of broadband internet access service as an “information service” under Title I of the Communications Act.
• Reinstates the classification of mobile broadband internet access service as a private mobile service.
• Finds that the Title II-grounded regulation adopted in 2015 has reduced internet service provider (ISP) investment in networks, as well as hampered innovation, particularly among small ISPs serving rural consumers.
• Finds that public policy, in addition to legal analysis, supports the information service classification, because it is more likely to encourage broadband investment and innovation. 
• Restores broadband consumer protection authority to the Federal Trade Commission (FTC), enabling it to apply its extensive expertise to provide uniform online protections against unfair, deceptive, and anticompetitive practices.

Report and Order

• Requires that ISPs disclose information about their practices to consumers, entrepreneurs, and the commission, including any blocking, throttling, paid prioritization, or affiliated prioritization. These practices, however, are not prohibited by the FCC.
• Finds that transparency, combined with market forces as well as antitrust and consumer protection laws, achieves benefits comparable to those of the 2015 “bright line” rules at lower cost.
• Eliminates the vague and expansive Internet Conduct Standard, under which the FCC could micromanage innovative business models. 

Order

• Finds that the public interest is not served by adding to the already-voluminous record in this proceeding additional materials, including confidential materials, submitted in other proceedings.

All three Republican FCC commissioners -- Chairman Ajit Pai and fellow Commissioners, Michael O'Rielly and Brendan Carr -- voted in favor of the action.

Chairman Pai led the charge to rescind the 2015 rules. He said,

Quite simply, we are restoring the light-touch framework that has governed the Internet for most of its existence. We’re moving from Title II to Title I. Wonkier it cannot be. It’s difficult to match that mundane reality to the apocalyptic rhetoric that we’ve heard from Title II supporters. And as the debate has gone on, their claims have gotten more and more outlandish. So let’s be clear. Returning to the legal framework that governed the Internet from President Clinton’s pronouncement in 1996 until 2015 is not going to destroy the Internet. It is not going to end the Internet as we know it. It is not going to kill democracy. It is not going to stifle free expression online. If stating these propositions alone doesn’t demonstrate their absurdity, our Internet experience before 2015, and our experience tomorrow, once this order passes, will prove them so.

Commissioner O'Rielly opposed the FCC's 2015 rules and was not convinced "heavy-handed rules are needed to protect against hypothetical harms."  He added,

With the elimination of Title II, there is no remaining legal basis for the net neutrality bright line rules and general conduct standard, so we must repeal them.  In many proceedings before this agency, I have questioned the need for rules that impose costs but do not solve real problems, so their removal is completely appropriate and necessary.  That isn’t necessarily the end of the story, however.  Congress may enact legislation providing new rules and the legal authority to support them.  I firmly believe that would be the better course and the only way to bring finality to this issue. 

Commissioner O'Rielly also highlighted the order's preemption of state and local laws concerning broadband:

Last, but certainly not least, the order contains a clear declaration that broadband is an interstate information service and a robust preemption analysis.  The order makes plain that broadband will be subject to a uniform, national framework that promotes investment and innovation.  This is eminently reasonable and completely consistent with the Constitution’s Commerce Clause. Broadband service is not confined to state boundaries and should not be constrained by a patchwork of state and local regulations. And, this is particularly germane to wireless services where mobile devices and the transmissions they carry can easily cross state lines.  This could have drastic results where it is possible for such communications to be prioritized in one state, but not in another.  A hodgepodge of state rules could severely curtail not only the next generation of wireless systems that we have been working so hard to promote, but also the technologies that may rely on these networks in the future.  Accordingly, any laws or regulations that conflict with or undermine federal broadband polices are preempted.  Given my druthers, I would actually go even further on preemption, but I could only carry the debate so far today.

Carr identified those four legal checks as: 1) FTC consumer protections, 2) FTC privacy protections, 3) FTC antitrust enforcement, and 4) state consumer protection laws.

Democratic Commissioners Mignon Clyburn and Jessica Rosenworcel vehemently dissented.

Commissioner Clyburn said, "I dissent, because I am among the millions who is outraged. Outraged, because the FCC pulls its own teeth, abdicating responsibility to protect the nation’s broadband consumers." Commissioner Clyburn highlighted what the FCC's decison will mean for marginalized groups who depend on the internet to communicate because traditional outlets haven't covered their concerns. 

It was through social media that the world first heard about Ferguson, Missouri, because legacy news outlets did not consider it important until the hashtag started trending. It has been through online video services, that targeted entertainment has thrived, where stories are finally being told because those same programming were repeatedly rejected by mainstream distribution and media outlets. And it has been through secure messaging platforms, where activists have communicated and organized for justice without gatekeepers with differing opinions blocking them.

Commissioner Clyburn also complained about the FCC majority's rush to judgement on the issue, saying that the fix was in. 

There is no real mention of the thousands of net neutrality complaints filed by consumers. Why? The majority has refused to put them in the record while maintaining the rhetoric that there have been no real violations. Record evidence of the massive incentives and abilities of broadband providers to act in anti-competitive ways are missing from the docket? Why? Because they have refused to use the data and knowledge the agency does have, and has relied upon in the past, to inform our merger reviews. As the majority has shown again and again, the views of individuals do not matter, including the views of those who care deeply about the substance, but are not Washington insiders.

"Net neutrality is internet freedom," said FCC Commissioner Rosenworcel. "I support that freedom." She added, "This decision puts the Federal Communications Commission on the wrong side of history, the wrong side of the law, and the wrong side of the American public."

Rosenworcel has been a fierce critic of the FCC's process to reach this decision and reviewed her concerns in her statement. She noted that millions of comments had been filed in the docket, but two million comments feature stolen identities, half a million comments are from Russian addresses, and fifty thousand consumer complaints are inexplicably missing from the record. "I think our record has been corrupted and our process for public participation lacks integrity," she said, adding, "This is not acceptable. It is a stain on the FCC and this proceeding. This issue is not going away. It needs to be addressed." 

Congress Weighs In

“Now that the FCC has acted to reverse an ill-conceived regulatory scheme," said Senate Commerce Committee Chairman John Thune (R-SD), "Congress must take the lead in setting a clear path forward through bipartisan legislation to avoid the risk of regulatory back and forth. As I did before the Obama Administration first put its rules into place in 2015, I favor Congress enacting net neutrality protections and establishing sensible limits on the power of regulators. I call on Democrats and Republicans who want to preserve a free and open internet to work together on permanent consumer protections.”

Thune's counterpart, Ranking Member Bill Nelson (D-FL), also called for Congressional action saying, "FCC Republicans turned their backs on consumers by voting to give internet providers the ability to decide what websites their customers see, how fast they see them and how much they are going to have to pay for access. Congress needs to fix the mess the FCC has now created with a lasting solution that will fully protect consumers and preserve the FCC’s authority.  Securing these protections will be difficult and won’t happen quickly given the current political climate in Congress.  But, for the sake of consumers, we have to continue to try."

In the House, House Commerce Committee Chairman Greg Walden (R-OR) and Communications and Technology Subcommittee Chairman Marsha Blackburn (R-TN) released a joint statement:

The FCC’s vote today will preserve the open and dynamic Internet the American people have known since the early 1990s. The light-touch Title I rules, under which the Internet flourished for decades, will help more Americans than ever before access the web, video streaming, telemedicine, and the innovations of the future made possible by increased investment in broadband. Now, the table is set for Congress to provide clear, permanent rules through a bipartisan legislative solution. We hope that all stakeholders, and our Democratic colleagues, will finally engage in serious negotiations soon.

House Commerce Ranking Member Frank Pallone, Jr. (D-NJ) said, 

Today’s action by the Trump FCC will strip control of the internet away from the American people and give it to large corporate interests.  Without net neutrality, internet service providers will have the power to block some websites, speed up others and charge extra for certain content. By ignoring the overwhelming outcry of millions of Americans, the FCC’s Republican members are once again siding with their corporate cronies.  This abdication of responsibility will not stand, and I will keep fighting to put the FCC’s net neutrality protections back in place.

Given that these leaders will have to find common ground to enact net neutrality legislation, we suggest you don't hold your breath. The first action Congress may consider is overturning the FCC's order. Sen. Ed Markey (D-MA) is leading the effort in the Senate. "Congress can correct the Commission’s misguided and partisan decision and keep the internet in the hands of the people, not big corporations," he said when announcing his intentions. The resolution already has 16 co-sponsers, all Democrats. “Our Republicans colleagues have a choice,” Markey said. “Be on the right side of history and stand with the American people who support net neutrality, or hold hands with the big cable and broadband companies who only want to supercharge their profits at the expense of consumers and our economy.”

In the House, Rep Mike Doyle (D-PA), the ranking member of the Communications and Technology Subcommittee, has also promised to introduce a resolution to overturn the FCC order. Rep. Doyle led 118 House Members in a letter to the FCC asking it to not vote on Chairman Pai's Restoring Internet Freedom Order.

See You In Court

Even before the FCC's Order was released, a number of groups promised to challenge it in court. 

First up -- states. New York Attorney General Eric Schneiderman announced that he will lead a multi-state lawsuit to stop the rollback of net neutrality. For seven months, Schneiderman has been investigating the flood of fake comments submitted during the net neutrality comment process. 

“I think there will be a lot of lawsuits. There will be a lot of petitioners,” says Gigi Sohn, a fellow at Georgetown Law's Institute for Technology Law & Policy. “I don’t expect it’s going to be Google and Facebook [suing]. It’s likely to be small and medium-sized companies and other companies that have an online presence. And, of course, you get the non-profit sector.”

Free Press has "essentially promised to sue" says, Policy Director Matt Wood. The National Hispanic Media Coalition and Media Alliance have also indicated they will be part of a court challenge. Additional groups that could jump in the litigation pool include American Library Association, the Writers Guild of America, Computer & Communications Industry Association, Engine Advocacy, the Electronic Frontier Foundation, and Public Knowledge. [more on how the FCC will be challenged in court]

The litigation process will not begin today. First, the FCC order will have to be released and published in the Federal Register. Although FCC Chairman Pai may want to move fast, that process could take days or weeks. FCC staff indicated after the FCC's meeting December 14 that the Office of Management and Budget will have to approve the FCC's new transparency rule, a process that could take months. 

After suits are filed -- and, seriously, suits will be filed -- it could take 6 months or longer before a trial begins and another six months or so before a decision comes down. Whoever loses -- the FCC or the loyal opposition -- could then appeal the ruling. So this fight will continue through 2018, possibly (well, likely, actually) becoming an election issue. All cheer regulatory certainty!

Conclusion

Columbia Law Professor Tim Wu boiled the net neutrality debate down to a couple of basic questions: How should a network’s owner treat the traffic that it carries? What rights, if any, should a network’s users have versus its owners? With the internet becoming more and more intergrated into our daily lives, this debate isn't -- shouldn't -- go away any time soon...and certainly not before we reach a conclusion that serves the public interest.

Headlines will keep you up-to-date every step of the way.

See more on reaction to the FCC

This Week's Net Neutrality Reading List

• Poll: 83 percent of voters support keeping FCC's net neutrality rules (University of Maryland)
• Internet Pioneers and Leaders Tell the FCC: You Don’t Understand How the Internet Works
• The FCC is Ignoring 50,000 Consumer Complaints as it Moves Forward to Repeal Net Neutrality (Carmen Scurato, National Hispanic Media Coalition)
• Net neutrality regulations perfectly fit the FCC's statutory intent (Benton Senior Fellow Jonathan Sallet)
• Can the FTC Really Handle Net Neutrality? Let’s Check Against the 4 Most Famous Violations. (Harold Feld)
• No, the FTC CANNOT Have A Ban On All ISP Blocking. (Harold Feld)
• No, the Draft Net Neutrality Repeal Does Not “Restore Us To 2014” — And 2014 Wasn’t Exactly Awesome Anyway. (Harold Feld)
• Net Neutrality Protests Move Online, Yet Big Tech Is Quiet (New York Times)