Post Net Neutrality In-Depth Analysis

The Net Neutrality Saga: A Long-Expected Journey

April 23, 2015 , , ,

This past February, the FCC scored a huge victory for consumers, innovators, and creators of all kinds by voting to reclassify broadband Internet as a Title II common carrier service, thereby restoring the Commission’s congressionally delegated authority to protect a free and open Internet.

This was a big win in battle terms, but the war is not over. As predicted, the incumbent Internet Service Providers are not giving up on being able to engage in paid prioritization – creating “fast lanes” and “slow lanes” that would essentially hold content creators hostage from reaching consumer eyeballs. Now, they’re launching a multitude of counterattacks to try to reverse the FCC’s open Internet protections, and it’s up to all of us to keep on defending the rules in several forums.

Court challenges

Now that the rules are officially on the books, the ISPs and the trade associations that represent them have filed several challenges against the FCC. The petitioners include AT&T, CenturyLink, the American Cable Association, NCTA, US Telecom, CTIA–The Wireless Association, and Alamo Broadband, and they claim the FCC does not have legal authority to implement real net neutrality rules.

Almost all of them have filed in the DC Circuit – the same court that in January 2014 struck down the Commission’s initial 2010 rules and told the FCC to go back and try again. And conventional wisdom suggests the DC Circuit would be the most logical place to hear the case, since this would be the third case on the same issue for the DC Circuit, and the Commission’s rules were essentially a reaction to the DC Circuit January 2014 decision.

The FCC will, of course, be defending its rules in court. However, other stakeholders who have been deeply involved with the proceeding can weigh in to support the Commission as well. Yesterday, for example, Public Knowledge filed as an intervenor to defend the rules. Now that the FCC has carefully gone through the “roadmap” from the court’s 2014 decision and reclassified broadband Internet access service under Title II, we are confident the court will find that the FCC has authority to ensure consumers have nondiscriminatory access to an open Internet.

Congressional counteractions

Meanwhile, some members of Congress are also taking aim at the FCC’s rules, introducing a slew of bills, each purporting to address some part of the agency process that only seem to be in response to the FCC’s rules. Fundamentally, these attacks all amount to the same thing–conservative backlash at the behest of the ISP industry to weaken the Commission’s ability to protect consumers and the public interest.

  • MORE FLIES WITH HONEY: First, Senators Thune and Upton introduced bills before the FCC even voted, sensing the strong regulations coming and hoping to head the Commission off at the pass. They claim the bill legislatively protects net neutrality by preventing non-throttling and non-blocking, but these are in fact only two subcategories of the myriad of ways ISPs can and have demonstrated anti-consumer, anti-competitive practices online. More importantly, the bill revokes the Commission’s authority over any other aspect of the broadband ecosystem, forever. In short, though the bill paid lip service to an open Internet to the casual observer, it would have rendered the FCC completely impotent. Although several Democratic supporters have indicated some openness to a bipartisan legislative proposal, the policies embodied by the FCC’s rulemaking must be the floor for any negotiations.
  • SALTING THE EARTH:  An alternative – but unsurprising – attack came from a different faction of Congressional Republicans, headed by Rep. Collins. Once the rules hit the Federal Register, the clock starts ticking on the Congressional Review Act – which allows Congress to review a “major” rule issued by any federal agency before the rules take effect (so, 60 days). The resolution (“CR”) only needs a simple majority to pass in the House and the Senate – although the President can veto it, and likely would in this case. A CRA resolution has only passed once in history, during the Clinton administration – and a previous “CRA” attempt against the FCC’s 2010 rules failed. However, if successful, a CRA resolution would not only repeal the net neutrality rules, but prohibit the FCC from acting on net neutrality in any capacity again without direction from Congress.
  • AND THE “REFORM” KITCHEN SINK: Most recently, three members dropped three different draft “FCC process reform” bills, each of which aims to restructure how the agency functions. Each of these bills problematically bogs down the already complex and lengthy rulemaking process – yet another obvious attempt to undermine the FCC’s ability to do its job. Regardless of whether or not any of these initiatives passes, the message to the agency is siloed disapproval of net neutrality, rather than a comprehensive exploration of how the agency can operate most productively.

Of course, if Congress is serious about actually reforming the agency to better protect consumers in the digital age, it should look to legislation that considers the broader implications of changing the FCC’s process. There are many issues currently pending that impact how consumers access basic communications services, but these narrowly tailored bills do not address many unintended consequences. Instead of a broad discussion about how the FCC should function, members of Congress have been pushed by big cable and telecom companies like Comcast and Verizon to continue to browbeat the Commission on a single proceeding simply because they didn’t get their way this time. 

The FCC should be proud of its Open Internet proceeding through and through, and we appreciate that they were willing to listen to the voices of millions of average Americans.  We wanted strong rules, and the agency has delivered. Public Knowledge and the rest of the pro-open Internet community remain committed to defending the Commission’s rules, in Congress and in the courts.

 

Image credit: Wikimedia Commons user Antonio Borrillo