The Federal Communications Commission's flawed December 2017 order eliminating net neutrality rules took effect on June 11; however, lawsuits have rendered its future uncertain.
The Federal Communications Commission (FCC) December 2017 "Restoring Internet Freedom" order officially took effect on Monday, June 11. The order, which was published in the Federal Register on February 22, eliminated net neutrality rules established in 2015 that prohibited internet service providers (ISPs) from blocking or throttling online content and banned them from engaging in the practice of paid prioritization (as defined in the 2015 order establishing the rules).
In essence, the 2017 order changed the legal classification of consumer broadband services in such a way that precludes the FCC from regulating ISPs as it did in 2015. Commissioner Pai also departed from previous Commissions and abdicated any responsibility on the part of the FCC to provide net neutrality guidance or oversee consumer broadband services. The Pai FCC opted instead to focus solely on imposing a "transparency" requirement; in short, it allows ISPs to block or throttle data traffic on their networks as well as to engage in paid prioritization as long as they disclose their practices publicly. Relying on the transparency requirement instead of direct net neutrality rules places the issue of anti–net neutrality practices in the realm of consumer protection and anti-trust enforcement as overseen by the Federal Trade Commission (FTC).
Commissioner Pai and the FCC majority adopted this approach based on the assumption that it would allow consumers to "vote with their feet" and choose broadband providers that don't block or throttle content or that don't charge providers of content and other online services for faster transmission of their data streams. The majority assert that harnessing competition in this fashion will ultimately provide consumers with superior broadband access. Unfortunately, as EDUCAUSE illustrated in a letter sent to the Commission just prior to passage of the 2017 order, the FCC's own data shows a distinct lack of competition in consumer broadband markets throughout most of the country. Thus, the basic assumption on which the 2017 order rests is fundamentally flawed, undermining the Pai FCC's claim that a "transparency only" model, as opposed to direct regulation of anti–net neutrality practices, can actually work. (You can learn more about EDUCAUSE's view on the damaging effects of the "transparency only" approach by referring to an earlier post on the subject.)
What's next in the seemingly endless debate over whether and how the internet should be regulated? While most agree that a legislative solution to the issue of net neutrality provides the surest path to ending the regulatory back-and-forth, it seems unlikely that Congress — at least in the near term — will be successful in producing a compromise. Senate Democrats, with the help of three Senate Republicans, recently passed a resolution that would effectively repeal the 2017 order. However, the measure's fate in the House of Representatives is uncertain at best. As of this post, House Democrats have secured 170 signatures on a petition to force a vote on the legislation, which is 48 signatures short of what is needed to bypass the House's Republican leadership and take the measure straight to the House floor. Even if Democrats did succeed in bringing the measure to the floor for a vote and getting it passed, it would almost certainly be met with a presidential veto that neither chamber of Congress would have the votes to override.
Several states, including Oregon and Washington, have successfully enacted their own net neutrality laws, and California may be poised to follow suit sometime this summer. Five other states have enacted executive orders to require state procurement of broadband services only from providers that apply net neutrality rules to those services. While net neutrality advocates welcome these state actions in the absence of federal regulation, whether they can withstand the FCC's claim that its authority to impose a "transparency only" regime trumps state law in this context is far from clear. Broadband access has traditionally been seen as a service falling under federal authority as a matter of interstate commerce; however, the FCC's decision in the 2017 order to deny that it has any significant regulatory authority over the internet could significantly undercut its claim that states cannot fill the gap.
With meaningful federal legislative action unlikely for now, it seems the courts will have to decide the issue, at least in the near term. A host of state attorneys general, as well as public interest groups, have filed suit seeking to overturn the Restoring Internet Freedom Order. Their challenge will be heard in the DC Circuit Court of Appeals. The DC Circuit has yet to provide a clear timeline for judging the case, but EDUCAUSE intends to work with others in the higher education and library communities to submit an amicus brief in support of the challenge.
Kathryn Branson is an associate with Ulman Public Policy.
© 2018 Kathryn Branson. The text of this work is licensed under a Creative Commons BY-NC-ND 4.0 International License.