Net Neutrality Does Not End Today. We Still Don’t Know When It Will. This Is Unusual.April 23, 2018
This is an edited version of a blog post originally published on Harold Feld's personal blog, Tales from the Sausage Factory, on WetMachine.com.
There is a lot of confusion on the effective date for the Federal Communications Commission’s 2017 Net Neutrality Repeal Order. This is not surprising, given the rather confusing way the Federal Register Notice reads.
You can see the Federal Register Notice here. If you look at the section labeled dates, you will see it says the following:
“Effective dates: April 23, 2018, except for amendatory instructions 2, 3, 5, 6, and 8, which are delayed as follows. The FCC will publish a document in the Federal Register announcing the effective date(s) of the delayed amendatory instructions, which are contingent on OMB approval of the modified information collection requirements in 47 CFR 8.1 (amendatory instruction 5). The Declaratory Ruling, Report and Order, and Order will also be effective upon the date announced in that same document.” (Emphasis added.)
Which is a very confusing way of saying the following: “Before net neutrality gets repealed and the new, much weaker disclosure obligations go into effect, we are going to wait for the Office of Management and Budget (OMB) to review the much weaker transparency rule under the Paperwork Reduction Act and other legislation that is supposed to make it harder to pass rules. Once OMB signs off, we at the FCC will publish a second notice in the Federal Register announcing when everything goes into effect. But until we do that, nothing actually happens. Zip. Nadda. Zero. Total psyche!”
This is, to say the least, highly unusual. There is absolutely no reason for FCC Chairman Ajit Pai to have stretched out this process so ridiculously long. It is especially puzzling in light of Chairman Pai’s insistence that he had to rush through repeal of net neutrality over the objections of just about everyone but the ISPs and their cheerleaders. If Pai thought it was a total emergency to take his vote in December, why did he basically extend the current Title II regime indefinitely? Why hasn’t Pai restored our Internet Freedom, as promised in the overdramatic title of the Order? Why has Pai instead forced us to languish here in the terrible regulatory nightmare that is the merely “open internet” rather than the private sector-controlled de-regulatory paradise he and his fellow Republican Commissioners have promised us? In fact, the FCC didn’t even submit the new rule to OMB for approval until March 27. For a guy who was all on fire to repeal Title II and free broadband providers, Pai sure has taken his time making it actually happen.
Somebody who is an actual reporter might want to ask him about that. But one thing is clear. For whatever reason, Ajit Pai is taking his own sweet time restoring that internet freedom he claimed to be so obsessed about back in December. Whenever the net neutrality appeal does happen, it won’t be Monday, April 23.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” (Public Knowledge & Roosevelt Institute 2019) a guide on what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[…] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Circuit Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”