On Dec. 14, the Federal Communications Commission’s commissioners voted 3-2 to repeal net neutrality on Dec.13, capping off months of heated debate over what changes this vote might portend, and starting a new chapter of arguments over whose best interests the vote really serves.
In 2015, the FCC adopted the Open Internet Order which reclassified broadband as a telecommunication service and prohibited internet service providers from setting up internet fast and slow lanes, ensuring all online traffic is treated the same.
The D.C. Circuit Court upheld the rules in 2016, but the FCC started efforts to roll back these protections in spring of this year.
According to an announcement following the vote: “The FCC voted to restore the longstanding, bipartisan light-touch regulatory framework that has fostered rapid Internet growth, openness, and freedom for nearly 20 years … the FCC is returning to the traditional light-touch framework that was in place until 2015.”
The FCC voted to:
Restore the classification of broadband Internet access service as an “information service” under Title I of the Communications Act—the classification affirmed by the Supreme Court in 2005.
Reinstate the classification of mobile broadband Internet access service as a private mobile service.
Opine that the regulatory uncertainty created by utility-style Title II regulation has reduced Internet service provider investment in networks, as well as hampered innovation, particularly among small ISPs serving rural consumers.
Require that ISPs disclose information about their practices to consumers, entrepreneurs, and the Commission, including any blocking, throttling, paid prioritization, or affiliated prioritization.
The repeal takes effect upon approval by the Office of Management and Budget, a process that necessitates the collection of additional information from industry.
FCC Chairman Ajit Pai described the Internet as “the greatest free-market innovation in history.”
“This decision was a mistake. For one thing, there was no problem to solve. The Internet wasn’t broken in 2015. We weren’t living in a digital dystopia. To the contrary, the Internet is perhaps the one thing in American society we can all agree has been a stunning success.”
FCC Chairman Ajit Pai
“What is responsible for the phenomenal development of the Internet? It certainly wasn’t heavy-handed government regulation,” he added.
By his telling, in early 2015, “the FCC scrapped the tried-and-true, light-touch regulation of the Internet and replaced it with heavy-handed micromanagement. It decided to subject the Internet to utility-style regulation designed in the 1930s to govern Ma Bell.”
“This decision was a mistake,” Pai said. “For one thing, there was no problem to solve. The Internet wasn’t broken in 2015. We weren’t living in a digital dystopia. To the contrary, the Internet is perhaps the one thing in American society we can all agree has been a stunning success.
“The main complaint consumers have about the Internet is not and has never been that their Internet service provider is blocking access to content. It’s that they don’t have access at all or enough competition. Under Title II, investment in high-speed networks has declined by billions of dollars. Notably, this is the first time that such investment has declined outside of a recession in the Internet era. When there’s less investment, that means fewer next-generation networks are built. That means less competition. That means fewer jobs for Americans building those networks. And that means more Americans are left on the wrong side of the digital divide.”
“It is time for the Internet once again to be driven by engineers and entrepreneurs and consumers, rather than lawyers and accountants and bureaucrats,” Pai added. “It is time for us to act to bring faster, better, and cheaper Internet access to all Americans. It is time for us to return to the bipartisan regulatory framework under which the Internet flourished prior to 2015. It is time for us to restore Internet freedom.”
Commissioner Brendan Carr also supported for the FCC’s action, describing claims by objectors as “myths” and “the Great Title II head fake, which is attributing to Title II things that it does not do.”
“Some claim, for instance, that Title II is preventing ISPs from selling bundled or curated plans that offer access to only a portion of the Internet. Not true. The FCC expressly stated that Title II allows providers to do just that,” Carr said. Similarly, “some claim that Title II is preventing ISPs from increasing their prices for broadband. But the FCC emphasized that its Title II decision involves no rate regulation.”
Commissioner Michael O’Rielly echoed that sentiment. “It is a shame that this topic has been plagued by baseless fear-mongering,” he said. “Many small businesses have been blatantly misled into thinking that they are going to be forced to pay more to continue to do business online. Others have been told that free speech and civil rights are on the line. It simply isn’t true.”
“The Internet has functioned without net neutrality rules far longer than with them,” he added. “Having rules has been the exception, not the norm. So, what happened during that time? Did ISPs start scouring the web in the hopes of charging a small business more to run an online shop? Did they block advocacy groups from expressing their views? Of course, not … The legend of a cable company trying to break the Internet may make a scary bedtime story for the children of telecom geeks, but it isn’t reality.”
Critics and states weigh in
On the other side was Commissioner Mignon Clyburn. “I dissent from this fiercely spun, legally lightweight, consumer-harming, corporate-enabling Destroying Internet Freedom Order,” she said. “I dissent, because I am among the millions outraged. Outraged, because the FCC pulls its own teeth, abdicating responsibility to protect the nation’s broadband consumers.”
“A soon-to-be-toothless FCC, is handing the keys to the Internet over to a handful of multi-billion dollar corporations,” she added. “And if past is prologue, those very same broadband internet service providers, that the majority says you should trust to do right by you, will put profits and shareholder returns above, what is best for you.”
Clyburn continued: “When the current protections are abandoned and the rules that have been officially in place since 2015 are repealed, we will have a Cheshire Cat version of net neutrality. We will be in a world where regulatory substance fades to black and all that is left is a broadband providers toothy grin.”
She also fretted that consumer pushback will be limited by a variety of ISP-demanded non-disclosure agreements and mandatory arbitration clauses, “so it will be a breach of contract to disclose these publicly or take the provider to court if there is any wrongdoing.”
In advance of the vote, the FCC and Federal Trade Commission entered into a “memorandum of understanding” outlining “their joint and common goals, obligations, and responsibilities to protect consumers and the public interest.”
“Consistent with its jurisdiction, the FTC will investigate and take enforcement action as appropriate against Internet service providers for unfair, deceptive, or otherwise unlawful acts or practices including, but not limited to, actions pertaining to the accuracy of the disclosures such providers make pursuant to the Internet Freedom Order’s requirements, as well as their marketing, advertising, and promotional activities,” the agreement says.
To further support coordination and cooperation on these matters, the agencies will work together to protect consumers, including through: consultation on investigations or enforcement actions that implicate the jurisdiction of the other agency; sharing relevant investigative techniques and tools, intelligence, technical and legal expertise, and best practices in response to reasonable requests for such assistance from either Agency; and collaboration on consumer and industry outreach and education efforts, as appropriate.
Clyburn was neither persuaded nor enthused by the agreement. “When the current, 2015 Net Neutrality rules are laid to waste, we may be left with no single authority with the power to protect consumers,” she said. “Now, this Order loudly crows about handing over authority of broadband to the FTC, but what is absent from the Order, and glossed over in that haphazardly issued afterthought of an MOU, is that the FTC is an agency, with no technical expertise in telecommunications; the FTC is an agency that may not even have authority over broadband providers in the first instance; the FTC is an agency that if you can even reach that very high bar of proving unfair or deceptive practices and that there is substantial consumer injury, it will take years upon years to remedy.”
“If you’re wondering why the FCC is preempting state consumer protection laws in this item without notice, let me help you with a simple jingle that you can easily commit to memory: If it benefits industry, preemption is good; if it benefits consumers, preemption is bad,” she added.
A number of efforts have mobilized to reverse course, despite the Commission’s vote. New York Attorney General Eric Schneiderman says he will lead a multistate lawsuit to stop the rollback of net neutrality.
“The FCC just gave Big Telecom an early Christmas present, by giving Internet service providers yet another way to put corporate profits over consumers,” he said in the lawsuit’s announcement. “The rollback will give ISPs new ways to control what we see, what we do, and what we say online. That’s a threat to the free exchange of ideas that’s made the Internet a valuable asset in our democratic process.”
“Today’s new rule would enable ISPs to charge consumers more to access sites like Facebook and Twitter and give them the leverage to degrade high quality of video streaming until and unless somebody pays them more money,” Schneiderman said. “Even worse, today’s vote would enable ISPs to favor certain viewpoints over others,” he added, pointing out that the vote follows a public comment process “that was deeply corrupted, including two million comments that stole the identities of real people.”
“This is a crime under New York law, and the FCC’s decision to go ahead with the vote makes a mockery of government integrity and rewards the very perpetrators who scammed the system to advance their own agenda,” he added.
States that have similarly announced their intent to sue the FCC, include: California, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, North Carolina, Oregon, Mississippi, Massachusetts, Pennsylvania, Vermont, Virginia, and Washington.
Sen. Charles Schumer has also announced support for a Congressional Review Act resolution that would rescind the 2015 Open Internet Order. He was flanked by Dennis Crowley, FourSquare CEO; Brian O’Kelley, AppNexus CEO; Julie Samuels, Tech: NYC executive director; and Erik Grimmelman, president of the NY Tech Alliance.
CRA resolutions allow Congress to overturn regulatory actions at federal agencies with a simple majority vote in both chambers. In accordance with the Congressional Review Act, the resolution be will be formally introduced once the rule is submitted to both houses of Congress and published in the Federal Register.
“The resolution I am announcing today would press ‘control, alt, delete’ on the FCC’s recent vote and restore Net Neutrality once again,” Schumer said.
Rep. Mike Doyle (D-Penn.) plans to also introduce a CRA resolution in the House of Representatives.