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FCC Sets April Funeral for Net Neutrality

Alan Breznick
2/22/2018
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Touching off a fresh battle between net neutrality supporters and opponents, the FCC has set April 23 as the end date for the Obama-era Open Internet Order. Now the big question is whether the funeral will take place as scheduled, if at all.

With the publication of its deregulatory Restoring Internet Freedom Order in the US Federal Register on Thursday, the Federal Communications Commission (FCC) formally started the two-month shot clock for putting the new rules into effect. If all goes as planned, FCC Chairman Ajit Pai's "light-touch regulatory scheme" will then take the place of the current rules, which bar ISPs from blocking or slowing down access to online content or prioritizing their own content and rely on the agency's Title II regulatory regime to enforce those rules.

Donít buy flowers for net neutrality's grave quite yet, though. Under the Congressional Review Act, Congress now has 60 legislative days to review the new regulations and decide whether to reject them. With support for keeping the current net neutrality rules running high among many Democratic lawmakers and a few Republican ones, that option remains a distinct possibility. But itís still considered a long shot because President Trump, who appointed Pai to his post last year, could veto anything Congress passed, raising the bar much higher for an override of the new rules to succeed. (See Congress, Courts Ready to Rumble With FCC.)

While a successful CRA rejection of the new rules may not happen, Congress could step in another way by putting some form of net neutrality rules into law. Numerous bills recently introduced in both the House and Senate propose to do just that, although no consensus has formed around any of them yet. (See Net Neutrality Heads to Court & Congress and Can Congress Crack Net Neutrality? No Way!)

Further, the legal battles over the repeal of net neutrality have only just begun. As previously reported, at least 22 states are preparing to sue the FCC over the new rules. Plus, several states are moving ahead with plans to impose their own versions of net neutrality within their jurisdictions, setting up another legal fight that could wind all the way up to the US Supreme Court. (See Net Neutrality: States' Rights vs. the FCC.)

Finally, the war of words over net neutrality will soon heat up again in the public square. For instance, advocacy groups like Fight for the Future, Demand Progress and Free Press Action are organizing a day of action on Feb. 27 to demand a final Senate vote on the CRA resolution to overturn the rules. Such tech companies as Reddit, Tumblr, Etsy and Medium are backing this effort, which is dubbed Operation: #OneMoreVote.

So don't count out net neutrality just yet. It may not be going away any time soon.

— Alan Breznick, Cable/Video Practice Leader, Light Reading

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Duh!
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Duh!,
User Rank: Blogger
2/28/2018 | 9:49:45 AM
Re: Lawsuits
"More egregious"? The mind boggles. 
Joe Stanganelli
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Joe Stanganelli,
User Rank: Light Sabre
2/27/2018 | 10:37:28 PM
Re: Lawsuits
@Duh: Chevron is far from a free pass, but I think we see this very differently. That bar of arbitrariness/caprice/abuse of discretion is a VERY high bar indeed to demonstrate -- and courts are very reluctant to make findings of such. I've observed and even litigated far more egregious agency actions (legally/procedurally speaking) and still seen judges decline to make that call.
Duh!
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Duh!,
User Rank: Blogger
2/27/2018 | 11:32:51 AM
Re: Lawsuits
No.

The Open Internet order made a case that the facts on the ground had changed since the Cable Modem order in 2002; that BIAS is more like a telecommunications service than an information service; that a record of past abuses makes regulation necessary; that the Commission's has no authority to do so except through Title II. The only alleged procedural abuse was supposed improper influence by the White House and the FCC, which was debunked by independent investigation.

I'm not sure whether the many flaws in the Internet Freedom (sic) order come from arrogance, incompetence or self-sabotage.
brooks7
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brooks7,
User Rank: Light Sabre
2/27/2018 | 10:58:55 AM
Re: Lawsuits
Duh!,

Do you think a similar claim can be made for the imposition of Title II?

I am asking because I think imposing it was wrong and now overturning it was wrong.  But all that said, I am not sure that the rules were not followed.

seven

 
Duh!
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Duh!,
User Rank: Blogger
2/27/2018 | 10:01:07 AM
Re: Lawsuits
Chevron doesn't give agencies a free pass. The court's decision will be guided by Section 706 of the Administrative Procedures Act.

In light of the record, it would be difficult to argue that this proceeding was anything other than "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law... short of statutory right... without observance of procedure required by law;... unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court."

 

 
Joe Stanganelli
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Joe Stanganelli,
User Rank: Light Sabre
2/26/2018 | 10:25:48 PM
Re: Shakeout Will Be Interesting
@seven: That's the thing. Net Neutrality is usually spoken of as the network operators treating traffic and content equally -- but the same activists beating the drum for what they deem Net Neutrality are often perfectly happy to see content hosts discriminate.

It's all a political red herring.
Joe Stanganelli
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Joe Stanganelli,
User Rank: Light Sabre
2/26/2018 | 10:21:10 PM
Re: Lawsuits
@Duh: On what legal basis?

Chevron is still the law of the land (Thomas and Gorsuch's anti-Chevron stances notwithstanding); as such, the FCC is entitled to reasonable interpretations of its power -- and declining to characterize broadband providers as common carriers under Title II seems like a pretty basic exercise of that discretion.
Phil_Britt
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Phil_Britt,
User Rank: Light Sabre
2/26/2018 | 4:03:25 PM
Re: Shakeout Will Be Interesting
No major consolidation, but big companies keep getting bigger and have the ability to wield more power.

 
brooks7
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brooks7,
User Rank: Light Sabre
2/26/2018 | 4:01:34 PM
Re: Shakeout Will Be Interesting
@phil_britt,

Your post talked about consolidation.  What consolidation since 2015 are you referring to?

@all,

2nd topic:  How should we view the new ad rules on Youtube as a component of Net Neutrality.  One of the big problems with NN is small content creators being blocked out of the market.  How is the latest rule changes about monetization of Youtube any different?

seven

 
Duh!
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50%
Duh!,
User Rank: Blogger
2/26/2018 | 1:35:09 PM
Re: Lawsuits
Really?

If I were a betting man, I'd bet that the court overturns it and administers Pai et al a good whupping to boot.
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