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Net Neutrality

FCC Ends Net Neutrality

WASHINGTON -- The Federal Communications Commission -- The FCC voted 3-2 along party lines today to repeal the Open Internet Order passed in 2015 and replace it with the new Restoring Internet Freedom Order. The new order returns broadband service to its classification as a Title I information service, and removes so-called bright line rules that prohibit Internet service providers from blocking, throttling or giving preferential treatment to traffic through paid prioritization.

While the decision was expected, it also sparked an uproar from net neutrality proponents who believe the regulatory reversal is against the public interest and will lead to pay-for-play delivery of content on the web.

In arguing for the new order, Federal Communications Commission (FCC) Chairman Ajit Pai contended that the Internet doesn't need utility-style regulation, and that the imposition of the earlier Open Internet Order led to a decrease in broadband investment -- a conclusion that is much debated. (See The Title II Capex Argument Is Ridiculous.)

He also asserted that the Federal Trade Commission is the right agency to protect consumers from unfair and anti-competitive practices online, which it will once again be in a position to do now that ISPs are under Title I classification.

"Today, we are putting the nation's premier consumer protection cop back on the beat," says Pai.

FCC Chairman Ajit Pai holds forth on the Order to Restore Internet Freedom among his fellow FCC commissioners.
FCC Chairman Ajit Pai holds forth on the Order to Restore Internet Freedom among his fellow FCC commissioners.

However, Democratic commissioners at the FCC have expressed serious concern over the new order, charging that consumer voices are being ignored, and that in addition to problems with the order itself, the process for managing public comments has been mishandled.

New York State Attorney General Eric Schneiderman is, in fact, investigating fake comments filed with the FCC in response to the order, as well as comments filed under false identities. Schneiderman has asked for the FCC's cooperation with the investigation, but the agency has declined to help.

Prior to the initial circulation of the Restoring Internet Freedom Order, industry observers had thought that the FCC under Chairman Pai would reverse Title II classification of ISPs, but perhaps leave the bright line net neutrality rules in place. Now some, including the principal analysts at MoffettNathanson LLC , speculate that Pai may have gotten rid of the bright line rules in order to pave the way for Congress to enact legislation that would bring them back while still leaving the Title I designation in place. This would create something of a good cop/bad cop scenario and could conceivably create a law that both sides could claim as a victory.

Such legislation is not what staunch net neutrality advocates are seeking, however, and it's not at all clear that Congress could come to consensus on a law in any case. (See Here's Pai in Your Eye.)


For more fixed broadband market coverage and insights, check out our dedicated Gigabit/Broadband content channel here on Light Reading.


What's interesting about the net neutrality debate is the fact that politicians on both sides of the aisle recognize how much of a hot button issue it is with voters. Numerous Democrats condemned Chairman Pai's Restoring Internet Freedom Order when it was released, but several Republicans have also now expressed their concern in the face of backlash from constituents. Notably, US Representative Mike Coffman (R-CO) reportedly sent a letter to Pai this week requesting a delay of today's vote in order to let Congress review the issue. Both Senators from Maine -- Senator Angus King (I-ME) and Senator Susan Collins (R-ME) -- requested a cancellation of the vote in a last-minute plea to the Chairman today.

Meanwhile, net neutrality advocates are making their voices heard here on site at the FCC. Protesters rallied outside the FCC building early in the morning with speakers including Representative Keith Ellison (D-MN) and actress Amanda Seales of the HBO show Insecure. The general theme of the protests has centered on fears that the net neutrality repeal will threaten free speech and limit the distribution of public news, information and entertainment to established corporate interests.

Actress Amanda Seales rallies a crowd of protesters outside the FCC.
Actress Amanda Seales rallies a crowd of protesters outside the FCC.

Now that the Restoring Internet Freedom Order has passed, the next stop for the regulatory rule is likely the judicial system. The order will be challenged in court, and because the US Appeals Court of the DC Circuit upheld the Open Internet Order last year, there will have to be a compelling argument to suggest that something has changed since then to support a reversal. (See FCC Wins Key Net Neutrality Ruling.)

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— Mari Silbey, Senior Editor, Cable/Video, Light Reading

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Duh! 12/14/2017 | 5:05:41 PM
Not dead yet As I explained in an earlier post, it appears that this Order meets mulitple legal criteria for the court to overturn it -- arbitrary, capricious abuse of discretion, without observance of procedure, not warranted by the facts.  In any event, the FCC's lawyers are going to have some serious 'splaing to do.

Something that I forgot about, but one of the public interest groups remembered: the Congressional Review Act. It takes but a simple majority of House and Senate to overturn a regulatory action during the six months after it is published in the Federal Register. So six months from January is July, which is around primary season. The general is, of course in November. Supposedly, a number of House and Senate Republicans are troubled by this. This is another possible future.
mendyk 12/14/2017 | 5:41:59 PM
Re: Not dead yet A slim reed is better than no reed at all. Maybe.
brooks7 12/14/2017 | 6:34:13 PM
Re: Not dead yet As I have stated, I don't think are as clear as Duh! does.  We agree that overturning Title II is a bad idea.  To me the key paragraph of the new ruling is:

"17. Later that year, the Commission embarked yet again down the path of rulemaking, proposing to rely on section 706 of the Telecommunications Act to adopt enforceable rules using the D.C. Circuit's "roadmap."44  But in November 2014, then-President Obama called on the FCC to "reclassify consumer broadband service under Title II of the Telecommunications Act."45  Three months later, the Commission shifted course and adopted the Title II Order, reclassifying broadband Internet access service from an information service to a telecommunications service,46 and reclassifying mobile broadband Internet access service as a commercial mobile service.47  The Commission also adopted no-blocking, nothrottling, and no-paid-prioritization rules, as well as a general Internet conduct standard and "enhancements" to the transparency rule.48  In 2016, a divided panel of the D.C. Circuit upheld the Title II Order in United States Telecom Ass'n v. FCC, concluding that the Commission's classification of broadband Internet access service was permissible under Chevron step two.49  The D.C. Circuit denied petitions for rehearing of the case en banc,50 and petitions for certiorari remain pending with the Supreme Court.51"

 

My view of this is that the order to implement Title II was about as capricious as one to remove it.

The lawyers get more money.  Our lot does not change.

seven

PS - This is so stupid in the general media that it is absurd.  The headline on CNN was:  "The End of the Internet as we Know It".  Please the old rules lasted for about 20 years and this is essentially a return to them.  
Phil_Britt 12/17/2017 | 9:11:04 PM
Re: Not dead yet You make a good point. This FCC ruling is only one step in a process, though some courts are getting stacked to favor the Administration (not the first Administration to do this)
danielcawrey 12/18/2017 | 12:17:53 PM
Re: Not dead yet Let's just wait and see how this process plays out. 

I could see the courts making a different determination on this. Glad that we have some checks and balances in order to keep things relatively sane. 
Phil_Britt 12/18/2017 | 12:34:51 PM
Re: Not dead yet The checks and balances aren't what they once were. Divided government works best.
Joe Stanganelli 12/18/2017 | 9:00:19 PM
Re: Not dead yet > The lawyers get more money.

This is the case with most major regulatory overhauls -- one way or the other.

Well, some lawyers... My practice has yet to see any windfall from this. ;)
Joe Stanganelli 12/18/2017 | 9:09:03 PM
Re: Not dead yet @Phil: True, but this is the theory behind lifetime appointments -- that, once appointed, executive-appointed members of the judiciary need not fear retaliation or other action one way or the other on the part of the executive.

Harry Blackmun is a perfect example of this. Blackmun was a Nixon appointee to the SCOTUS. Blackmun went on to author the Roe v. Wade decision -- to the chagrin of many a Republican.

Another good SCOTUS example who is more recent is David Souter. Souter was a Bush 41 appointee -- and was planted pretty very firmly in the liberal wing of the court throughout his tenure.

Yet more recent? John Roberts was appointed as our current Chief Justice of the Supreme Court by Bush 43. Roberts wound up being the last-minute switch vote that protected key provisions of Obamacare from being struck down as unconstitutional.

Of course, the better justices switch to "other side" here and there. Even Scalia, who had a reputation as a hardline conservative justice, was an equally hardline protector of accused suspect's 4th-, 5th-, and 6th Amendment rights -- something that tough-on-crime all-the-way conservatives may not be particularly fond of.
Phil_Britt 12/18/2017 | 9:10:54 PM
Re: Not dead yet To be honest, I was shocked by the Roberts decision. But it seems that they are doing everything they can to stay away from nominees the least bit centrist.

 
Joe Stanganelli 12/18/2017 | 9:22:39 PM
Re: Not dead yet @daniel: I'm really struggling to see the legal argument that would compel the FCC to reverse itself here. The only leg liberal state AGs have to stand on here as far as I can tell (of course, I fully grant that I may be missing something because I have not followed this entirely closely) is the issue of fake comments. This is just silliness, however. As with just about every issue on which the public comments, I suspect, the Chairman has pointed out that it was the substance of comments and the legal issues they pointed out that had more to do with anything.

(And it's not like there weren't fake comments when Title-II regulation went into effect two years ago.)

Practically speaking, there's little to nothing a regulatory body can do to prevent fake and duplicate comments. It just so happens that this was an issue that lent itself particularly well to stirring them up and attracting them. Yes, federal systems should be secure, but this is a red herring. Net-neutrality proponents didn't get what they want and they are doing everything they can to stall or interfere with the rollback of the 2015 Order. I don't blame them for it, but it's still tax-dollar-wasting political silliness.

Even if the lawsuit winds up being successful, the Pai FCC will still eventually manage to keep broadband providers categorized under Title I or otherwise not-so-heavily regulated. There's always a way.

As for the state AGs threatening to sue, it's mere political posturing to take advantage of the electorate's whims. A lawyer colleague of mine with whom I once spoke on a panel put it thusly: "'AG' doesn't stand for 'Attorney General'; it stands for aspiring 'Aspiring Governor'."
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