Battle over FCC move far from over
Final net neutrality rules lead to legislation, suits
The Federal Communications Commission published its final order Thursday reversing net neutrality regulations, but there’s nothing final about the debate.
With the repeal set to go into effect April 23, the clock now starts ticking on more rounds of a highly political debate in Congress, the courts and statehouses. While individual states, especially California, could ultimately hold the keys to replacing net neutrality provisions, the wrangling could continue for years.
“We should be prepared for a state of uncertainty in the near future over what rules will govern broadband Internet, and that is the same as it’s been mostly for the past decade,” said telecommunications attorney Travis LeBlanc, a former FCC enforcement chief.
The FCC voted 3-2 in December to rescind Obama-era regulations that established the net neutrality principle that Internet service
companies should treat all Web traffic equally. Net neutrality proponents worried that without the regulations, big Internet companies could block or slow down online services while charging deep-pocketed companies for faster access.
AT&T, Verizon and Comcast supported the move by FCC Chairman Ajit Pai to repeal the standards, saying the net neutrality regulations had added unnecessary layers of rules and could undermine their investments in broadband.
In the ruling published in the Federal Register, the FCC said its Restoring Internet Freedom Order was returning to a “light-touch regulatory scheme that enabled the Internet to develop and thrive for nearly two decades.”
The publication starts the clock on the Congressional Review Act, a law that gives Congress 60 legislative days to review and reverse new regulations from a government agency like the FCC. (Congress could also enact its own net neutrality law after the review period is over.)
The final order also was the procedural step allowing California Attorney General Xavier Becerra and his counterparts in 20 states and the District of Columbia to file a joint lawsuit challenging the ruling. The coalition had filed a petition preserving its right to sue last month, and it refiled the suit Thursday.
“Internet access is a utility, just like water and electricity,” Becerra said in a statement. “A free and open Internet drives innovation, economic growth and consumer choice. As home to countless start-ups and technology giants alike, California knows this better than anywhere else.”
The California Public Utilities Commission filed an appeal Thursday on the net neutrality issue with the Ninth U.S. Circuit Court of Appeals in San Francisco.
Mozilla, the San Francisco organization behind the Firefox browser, also refiled its lawsuit challenging the FCC’s decision, which “does not simply ‘roll back’ to an unregulated Internet,” chief legal officer Denelle Dixon said in a blog. “Instead, it removes affirmative protections for the public despite the fact that many people in the U.S. suffer from a lack of choice in broadband high speed Internet access.”
LaBlanc, now a partner in the law firm Boies Schiller Flexner, said the lawsuits could take months if not years.
Net neutrality proponents believe they have a shorter avenue in Congress, where Senate Democrats say they are close to starting a review and reversal, with 49 votes along party lines and the support of one Republican senator. Even if they vote to reverse, they would need to find 218 votes in the Republican-controlled House. And a reversal would still need the signature of President Trump, who appointed Pai.
Reversing the FCC ruling might take “a court order or a new president of a different party,” LeBlanc said.
An online campaign planned for Tuesday aims to add public pressure on Congress to vote to review the order. Called Operation #OneMoreVote, the campaign is organized by the grassroots group Fight for the Future and includes support from the Electronic Frontier Foundation, Reddit, Etsy, Tumblr and the American Civil Liberties Union.
The ruling “more favored the rights of carriers than the rights of consumers,” said Dane Jasper, CEO of Santa Rosa Internet service company Sonic, which is also joining in the campaign.
Evan Greer, Fight for the Future’s campaign director, says it’s not a given that the president would veto a reversal, since polls show there is also strong Republican support for net neutrality.
“The reality is no one can predict what that guy will do,” Greer said.
AT&T CEO Randall Stephenson has added another wrinkle. In an open letter released last month, Stephenson called on Congress to pass a law establishing “an ‘Internet Bill of Rights’ that applies to all Internet companies and guarantees neutrality, transparency, openness, non-discrimination and privacy protection for all Internet users.”
Such a law would provide consistency in regulations that have changed “under four different presidents,” he wrote. “AT&T is committed to an open Internet. We don’t block websites. We don’t censor online content. And we don’t throttle, discriminate, or degrade network performance based on content. Period.”
But Electronic Frontier Foundation legislative counsel Ernesto Falcon said AT&T is mainly interested in keeping “a firm hold on the gains it has made in the last year at the expense of its customers’ rights.”
If Congress doesn’t act, Falcon said, 26 states — including California — are considering their own legislation, and five governors have signed executive orders, to enact net neutrality protections within their borders.
California has two bills pending. One, by Senate President Pro Tem Kevin de León, has passed the Senate and is under consideration in the Assembly. The other, by state Sen. Scott Wiener, D-San Francisco, is still being amended and may not be ready until next month.
Falcon said the bills will have to be combined to make them effective and strong enough to survive legal challenges, such as on whether the state law can supersede the FCC’s rules.
Representatives for de León, D-Los Angeles, did not return messages Thursday. In a statement, Wiener said he would work with de León “to move this important effort forward.”
What California does could influence how net neutrality regulations are enacted in other states, so “it’s important to show leadership in the state,” Falcon said.
“As a fundamental issue of social justice or economic advancement, an open, neutral Internet is essential to success,” he said. “Google, Facebook and Netflix all started in small shops. We won’t get new startups that become that giant without that same type of formula.”