Regulatory classification

The long, long trail winding from the Federal Communications Commission's Dec. 14, 2017, decision to eliminate network neutrality rules and the actual rollback of those rules continues to wind through Washington, with April 27 the next red-letter day. While some were reporting that April 23 was the effective date of the Restoring Internet Freedom order, that was not the case, or at least not the case with the overwhelming majority of the order, which still awaits the turn of another government wheel or two.

Gov Gina Raimondo (D-RI) ordered state agencies to use internet providers who observe network neutrality rules. Gov Raimondo said she issued the executive order so Rhode Islanders can “rely on the free exchange of information on the internet including the ability to access the content of their choosing.” The order mimics legislation pending in the state’s General Assembly that is intended to incentivize internet providers into following the Obama-era rules repealed by President Trump’s Federal Communications Commission (FCC).

A Republican-led Colorado state Senate panel rejected a net neutrality bill April 24. The state-level measure attempted to disqualify internet service providers from receiving grants from a broadband program if they manipulated access and speed based on content. The measure also would have required governments contracting for service to give preference to providers who certified allegiance to open-internet standards. “It uses the nexus of state support to protect the idea … of free internet,” said CO state Sen  Kerry Donovan, (D-Vail).

INCOMPAS, whose members including streaming services, edge providers, and competitive carriers, has officially filed suit against the Restoring Internet Freedom order. Part of their argument is the Federal Communications Commission did not include important information in the comment record for the decision. 

More than four months after the Federal Communications Commission voted to repeal network neutrality rules, the rules are technically still on the books, and we still don't know when they will die their final death. Why are the rules still in place? There's a technical answer related to how Pai structured the repeal, and there is speculation on why Pai structured it that way.

There is a lot of confusion on the effective date for the 2017 Net Neutrality Repeal Order, aka “Restoring Internet Freedom — Which Is Not In The Least Overdramatic Unlike You Hysterical Hippies.” This is not surprising, given the rather confusing way the Federal Register Notice reads.

[Commentary] When it came to unreasonable discrimination, the Federal Communications Commission's paid prioritization ban was more restrictive than the obligations that Section 202 placed on the old Bell telephone monopoly. 

[Commentary] A few years ago, Yale Law School Professor Jack Balkin explained that “a system of free speech depends not only on the mere absence of state censorship, but also on an infrastructure of free expression.”  He wisely observed that policies that facilitate open innovation “better serve the interests of speech in the long run.” To innovate, to speak, to learn, to trust – these are outcomes squarely within the power of the Federal Communications Commission to advance.

Gov Kate Brown (D-OR) will sign a network neutrality bill into law April 9, making Oregon the second state to pass a net neutrality law since the Federal Communications Commission voted to repeal nationwide rules. The new law was written narrowly in an attempt to survive lawsuits from Internet service providers. Instead of imposing prohibitions on all Internet providers, the law forbids state agencies from purchasing fixed or mobile Internet service from ISPs that violate the core net neutrality principles laid out in the soon-to-be-dead FCC rules.

Former Obama-era Federal Trade Commission Chairman Jon Leibowitz argued against a state bill creating its own network neutrality rules and regulations and Internet service provider contract terms and online privacy protections in the wake of the Federal Communications Commission's elimination of its own rules. According to his prepared testimony for a hearing before the Joint Committee on Telecommunications, Utilities, Leibowitz said he recognized "the sky did not fall" when the FCC, during the Obama Administration, reclassified ISPs as Title II common carriers.