WASHINGTON, December 15, 2017 – The Federal Communications Commission’s Thursday vote to repeal the “open internet” rules classifying broadband services as common carriers represents the most significant regulatory shift in the internet in more than a decade. Critics in Congress, at the agency, and even on late-night TV wasted no time in blasting it.
These repealed network neutrality regulations prohibited broadband internet providers from speeding up or slowing down certain websites’ internet traffic based on financial or business relationships. Now, internet providers will be free to throttle, block and prioritize traffic, so long as they provide notice to consumers that they are doing so.
The most recent iteration of those regulations were put in place by the FCC under President Obama in February 2015. It was based on Title II of the Communication Act, which regulates common carriers like telephone companies.
Such common carriage rules require telephone providers to treat all traffic the same in the same way. For example, Ma Bell was prohibited from prioritizing voice calls over fax calls, or prioritizing the calls of customers who buy telephone handsets from the phone company over those who didn’t.
Broadband reverts to being an information service 'regulated' under Title I
Under the rules that the FCC will implement after Thursday’s vote, broadband internet access service will revert to being "regulated" under Title I. That section of the law governs “ancillary services,” and for decades the FCC has classified “information services” under this lesser regulatory standard.
These information services are not subject to the same kinds of requirements as are common carriers.
Thursday’s result was only the latest chapter in a public policy battle that has raged since the waning years of the George W. Bush Administration.
At the time, the FCC under then-Chairman Kevin Martin ruled that Comcast had discriminated against peer-to-peer file-sharing applications by blocking traffic using the BitTorrent application.
The agency had held that Comcast’s actions departed from standard industry practice and did not fall under the category of “reasonable network management.” That was, then, part of the standard under which the FCC would allow a broadband provider to manage traffic.
Chairman Julius Genachowski, the first chairman selected by Obama, said that the FCC would be a “smart cop on the beat.” Genachowski proposed network neutrality rules that would enforceable under Title I – the less-regulatory standard – of the law. But those rules were also struck down by the D.C. Circuit Court.
In part, that led Genachowski’s successor Tom Wheeler to take the stricter step of reclassifying broadband under Title II.
Taking enforcement authority for internet violations out of the hands of the FCC
Not only does the FCC’s action Thursday undo that reclassification, it goes further by declaring that the FCC will not attempt to regulate broadband providers at all. Additionally, enforcement of what little that remains of the “net neutrality” rules are passed to the Federal Trade Commission.
The FTC can only take enforcement actions after a violation of consumer protection rules has occurred. Further, under a recent decision by the 9th Circuit Court of Appeals, the FTC may not even have the authority to regulate broadband providers at all.
The Department of Justice Antitrust Division could also initiate litigation. But that can take years to achieve a result.
While Pai characterized Thursday’s vote as a return to the “light-touch” regulation that existed before 2015, it goes further. It abdicates the authority and responsibility that Martin – a Republican considered an ardent foe of network neutrality – acknowledged that the FCC possessed.
Sharply critical reactions from Democrats in Congress
In addition to strong comments by Congressional Democrats like Rep. Anna Eshoo, D-California, and Sen. Ed Markey, D-Massachusetts, progressives and other advocates of net neutrality rules through their lot behind arguments that the FCC cannot simply abandon it authority to enforce consumer-focused standards for an internet.
During a conference call with media last week, former FCC general counsel Jonathan Sallet predicted that the courts would not allow the FCC to pick and choose which parts of the law to enforce.
“The draft order seems to say that the FCC is no longer interested in exercising its responsibilities as an expert agency,” said Sallet. “I do not believe a court of appeals will uphold this order.”
On Thursday, Markey and Eshoo added that in addition to leading efforts to draft an amicus brief for litigation in support of the rules, Markey said he will introduce a resolution under the Congressional Review Act that would overturn the FCC’s decision.
Senator Patrick Leahy, D-Vermont – who conducted a Judiciary Committee field hearing in Vermont on the subject of network neutrality -- also condemned Thursday’s vote in a statement.
“Today the FCC took a wrecking ball to the pillars of freedom and openness upon which the Internet was built. Without the protection of net neutrality rules, powerful telecommunication companies can decide which content gets preferential treatment and which gets throttled or even blocked," he said.
Leahy added that the decision will hurt consumers, small businesses, and startups by stifling innovation and competition, and pledged to keep fighting until the protections are restored.
Late-night comedians weigh in with their studied analyses
Even late-night television hosts whose employers have interests in the debate got in on attacking the FCC’s decision, with Stephen Colbert of CBS (which runs its’ own video streaming service), Seth Meyers of NBC (which is owned by Comcast), and Jimmy Kimmel of ABC (which is owned by Disney, which is starting its own video streaming services which could be blocked under the new rules) condemning the vote, which Kimmel called “absolutely despicable.”
"So now, we have to hope Congress agrees to vote on and reverse it,” Kimmel said. “So, thank you, President Trump - thanks to you and this (explitive deleted) [Pai] you appointed to run the FCC -- big corporations are about to take control of the internet."
Critics also raise concerns about the FCC's public comment process
Kimmel noted that many of the public comments filed with the FCC that were in favor the repeal turned out to have been filed under the names of dead people.
Wheeler and others had previously noted that problems with the public comment process, which attracted more comments than any other rulemaking in the FCC’s history.
That could factor into litigation seeking to overturn the new rules by allowing network neutrality advocates to claim that the FCC did not properly follow the Administrative Procedure Act.
Internet service providers pleased with the decision
While consumer groups and most technology companies were vehemently against repealing the 2015 rules, perhaps the only groups excited about the FCC’s vote were those associated with large broadband providers.
Michael Powell, President and CEO of NCTA – The Internet Association, praised the FCC’s decision in a statement released to reporters.
“Today’s FCC action rightly restores the light-touch approach to government regulation of the internet that has fostered the development of a vibrant, open and innovative platform,” Powell said. “For decades, America’s internet service providers have delivered an open internet – allowing consumers to enjoy the lawful internet content and applications of their choosing.”
Powell said that Internet providers have repeatedly pledged to continue to adhere to the now-repealed rules, but did not explain why his association’s members lobbied so aggressively for the rules’ repeal if they still want to follow them.
The two Democratic FCC commissioners minced no words
Democrats on the FCC railed against Pai and the Republican majority in angry statements delivered before the vote.
“I dissent from this rash decision to roll back net neutrality rules,” Commissioner Jessica Rosenworcel, a Democrat said.
"I dissent. I dissent from this fiercely spun, legally lightweight, consumer-harming, corporate-enabling Destroying Internet Freedom Order,” said Rosenworcel’s senior Democratic colleague.
(Photo of Sen. Patrick Leahy, among the critics of the FCC's Thursday decision on net neutrality.)