Net Neutrality’s Third Act

In December, the Federal Communications Commission voted to approve Chairman Ajit Pai’s “Restoring Internet Freedom” Order (“RIF Order“) that not only repealed the Obama administration’s February 2015 “Open Internet Order” that implemented new Net Neutrality rules but for the first time gave the green light to paid prioritization and throttling users so long as it is disclosed.  Afterward, Pai mocked Net Neutrality supporters afterward with this public service video.

The RIP Order became official when it published in the Federal Register on February 22nd, beginning another chapter in the decade-long battle over Net Neutrality.

FCC Chairman has argued that the Federal Trade Commission would have authority to go after entities that did not disclose throttling or prioritization actions and the 9th Circuit recently upheld the FTC’s authority to do so.

The Battle in Court

The RIF Order is being challenged in twelve separate lawsuits filed by more than three dozen entities, including state attorneys general, consumer advocacy groups, and tech companies, including:

  • Mozilla Corp.
  • Vimeo, Inc.
  • Public Knowledge
  • Open Technology Institute
  • New York Attorney General Eric Schneiderman, along with Democratic attorneys general from 21 other states and the District of Columbia
  • National Hispanic Media Coalition
  • Benton Foundation
  • Free Press
  • Coalition for Internet Openness, representing tech companies Automattic, Foursquare Labs, Etsy, Expa, Kickstarter, and Shutterstock
  • Etsy (filing by itself)
  • California Public Utilities Commission
  • County of Santa Clara, California

The lawsuits have been consolidated in the 9th Circuit and the telecom industry has filed petitions to intervene.  No briefing schedule has been set, but the court has set up a website for this case due to the intense interest.

FCC Chairman has argued that the Federal Trade Commission

The Battle in the States

wash signing.JPG

The RIF Order states that

We conclude that we should exercise our authority to preempt any state or local requirements that are inconsistent with the federal deregulatory approach we adopt today.

Nonetheless, the state of Washington became the first of what may be many states (including California) to adopt their own Net Neutrality rules to counter the RIF Order.¹  Drew Hansen, the sponsor of the Washington state legislation stressed that “the FCC doesn’t have preemption authority just because it says so.”

¹The status of state efforts may be found here and here.

Yet Pai and the telecoms may be on shaky legal ground invoking preemption over states Net Neutrality efforts.  The same day that the FCC adopted the Open Internet Order, it also adopted rules preempting state laws pushed by the telecoms restricting municipalities offering broadband service as being inconsistent with the FCC’s mission to expand broadband deployment in the US.  The telecoms appealed and won creating legal precedent against FCC preemption.

In addition, in the RIF Order, the FCC contends it lacks the authority to regulate the conduct of broadband providers, which makes it difficult to argue that the states should not be permitted to do so.  At the same time, there is a constitutional provision that gives the federal government the authority to regulate interstate commerce and bars states from imposing excessive burdens on interstate commerce.

Even if a court were to invalidate state attempts to reinstate Net Neutrality at least within their borders, states are adopting another tactic that courts cannot reverse and that is to limit state contracts to telecommunications providers who adhere to net neutrality principles.   The states of Montana, New Jersey, New York, Hawaii, and Vermont have implemented these requirements by executive order.

In addition, the RIF Order will not stop existing state investigations for net neutrality violations as a court refused to block a New York Attorney General investigation of AT&T’s throttling practices.

More Information:  Why the first state with a net neutrality law isn’t scared of lawsuits, Ars Technica; The FCC’s net-neutrality protections are about to disappear — but supporters are moving on multiple fronts to put them back in place, Business Insider; Calif. weighs toughest net neutrality law in US—with ban on paid zero-rating, Ars Technica.

The Battle in Congress

The Congressional Review Act gives Congress sixty (60) days to vote to repeal the RIF Order.  Senator Ed Markey (D-MA) is leading the fight on this front and is one-vote shy of having enough votes in the Senate, but House passage is unlikely and having Trump sign the resolution is very unlikely.

Having such an important issue like Net Neutrality ping-pong back and forth with each Presidential election is not a good way to implement a sound broadband policy.  There is some hope for a legislative compromise to resolve this issue once and for all, but this may not be likely in a charged mid-term election season.

Consider the following tweet by Senator Ted Cruz (R-TX) who is facing a tough reelection fight:

Positions like these do not suggest an openness to a nuanced solution and partisans on both sides are using this debate to motivate their base.

 

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  1. Pingback: DC Circuit Upholds Net Neutrality Repeal, But Not Preemption | Cyber Report

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