Analysis: Net neutrality: What’s next after the FCC’s landmark vote?
In approving strong net neutrality regulations, the Federal Communications Commission fulfilled a decade long desire by public interest advocates, technology firms and Democrats to tighten government oversight of the Internet to prevent abuses by broadband service providers.
But the agency’s closely watched decision on Thursday didn’t end the debate. Not even close.
The partisan divide over net neutrality -- reflected in the FCC’s party-line 3-2 vote -- highlighted the passions on both sides of the arcane technology policy concept and showed that final resolution of the issue still could be years away.
Here’s what’s coming next.
The devil’s in the details
Only the five FCC commissioners and some agency staffers have seen the 317-page net neutrality order, which prohibits broadband providers from blocking, slowing or selling faster delivery of legal content flowing through its networks.
The outlines of the plan from FCC Chairman Tom Wheeler has been disclosed only in speeches, summaries and news releases.
That point has been its own controversy, as Republicans labeled it a “secret plan to regulate the Internet” dictated to Wheeler by President Obama. The GOP pushed unsuccessfully for the full proposal to be released before the vote.
The FCC rarely makes its draft orders public before they are approved and Wheeler called the accusations ridiculous.
“This is no more a plan to regulate the Internet than the 1st Amendment is a plan to regulate free speech,” Wheeler said Thursday in emphasizing that his proposal took a modernized, light-touch regulatory approach.
But the devil is in the details.
Wheeler said the full order will be made public on the agency’s website and published in the Federal Register as soon as possible. But he would not estimate how long that would take.
Staffers said there were procedural steps they must be completed before that can happen, including responding to some of the points in dissenting comments from Republican Commissioners Ajit Pai and Michael O'Rielly.
O'Rielly, whose dissent was nine pages long and contained 33 footnotes, said he would file a longer one in the next few days. But he said Wheeler was free to release the order whenever he wanted.
“After refusing to share this document for three weeks, it takes a lot of nerve for commission leadership to blame me for its lack of transparency,” O'Rielly said.
A 193-page net neutrality order adopted in 2010, and later thrown out by a federal court, was released two days after the vote.
It can be days, weeks or even months after a vote before the FCC makes an order public, according to a study by Scott Wallsten, vice president for research at the Technology Policy Institute.
It’s unlikely to be months in this case, given all the attention it has attracted. But it could easily be a couple of weeks before the details are released.
The FCC has incentive to go as fast as possible: The regulations can’t take effect until 60 days after they are published in the Federal Register.
Here comes the judge
Once the order is public, one or more broadband service providers or trade associations are expected go to court to stop it.
When the FCC publicly released its previous, looser net neutrality regulations on Dec. 23, 2010, Verizon Communications Inc. was at the U.S. Court of Appeals for the District of Columbia 28 days later filing an appeal.
Verizon won that lawsuit, with judges ruling that the FCC was trying to treat broadband providers like more highly regulated conventional telephone companies without formally classifying them that way under Title 2 of the telecommunications law.
The new FCC plan tries to address that problem by classifying broadband as a telecommunications service under Title 2. Wheeler said that was a reason he had “great confidence” the regulations would withstand legal challenges.
Broadband providers could ask a court to stay the order pending a ruling. Wheeler said Thursday he thought there was a “high hurdle” for a stay.
But a lawsuit could be successful on several grounds.
The wireless industry argues that Congress prohibited the FCC from expanding its regulatory oversight to mobile broadband.
A 1993 law classified mobile voice calling as Title 2 telecommunications services, but specifically left every other wireless service out.
In 2010, the FCC didn’t apply most of its net neutrality rules to wireless broadband. The regulations approved Thursday apply to wireless and wired service.
Meredith Attwell Baker, president of CTIA-The Wireless Assn., warned last month that the industry “will have no choice but to look to the courts” if Wheeler’s plan were approved.
Wired broadband providers are likely to argue that the FCC is reversing its own 2002 decision. By a 3-2 vote, the Republican majority at the time classified broadband as a more lightly regulated information service, not a Title 2 telecommunications service.
That was one of the legal problems in the order that O'Rielly discussed in his dissent, which could serve as a playbook for an industry challenge.
He also said the FCC didn’t “provide sufficient notice and opportunity for comment” after Wheeler made major changes to his initial proposal in the spring. The new plan only emerged in recent weeks and there was no public comment period.
And O'Rielly said the regulations were “not supported by evidence of actual harms.” That’s legalese for one of the Republican and telecom industry mantras on net neutrality, that it is “a solution in search of a problem.”
Constructing rules of the online road
If there is no court stay and the net neutrality rules take effect, the FCC still must define some of the more amorphous aspects of the plan.
Parts of the proposal, as outlined by the FCC’s news release, are very specific. There are three “bright line rules for broadband providers.
- No blocking: Broadband providers may not block access to legal content, applications, services or nonharmful devices.
- No throttling: Broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services or nonharmful devices.
- No paid prioritization: Broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind — in other words, no “fast lanes.”
But other rules are vague.
To protect against unforeseen abuses, the regulations say broadband providers cannot “unreasonably interfere with or unreasonably disadvantage” the ability of consumers to access lawful content and services.
The FCC said it would make decisions on a case-by-case basis. Broadband providers could seek input from the agency before unveiling a new service or offering but will not have to get them preapproved.
But it’s unclear if some new offerings will pass the “unreasonable” test. One such offering is a so-called zero-rating plan, in which a wireless provider does not count usage of an app, such as for music streaming, against a customer’s data limit.
Revenge of the lawmakers
Key congressional Republicans warned the FCC not to impose utilitylike regulation on broadband providers. They introduced their own net neutrality legislation to prohibit discriminatory treatment of content, such as offering faster delivery.
But Obama and Democratic supporters of net neutrality said that legislation would take away the FCC’s authority to deal with future broadband issues.
Thursday’s vote by the FCC commissioners brought sharp criticism from Republican leaders, showing how net neutrality has grown into a high-profile political issue.
“Overzealous government bureaucrats should keep their hands off the Internet,” said House Speaker John A. Boehner (R-Ohio).
Congress could invalidate the FCC’s actions in a few ways. It could pass a resolution of disapproval, invalidating the net neutrality order, although Obama would be certain to veto such a bill.
Republicans could also pass their own net neutrality legislation, which would override the regulations approved Thursday.
Democrats don’t support the current bill, but if Republicans made changes to get it closer to Wheeler’s plan it could draw support, even from Obama. That’s because a new law would eliminate legal challenges from the industry on the grounds that the FCC was overstepping the authority granted to it by Congress.
The final option for Congress is to specifically prohibit the agency from using any of its funding to enact or enforce the new rules. With Republican majorities in both chambers, that could happen when the FCC’s appropriations move through Congress. Obama then would be faced with vetoing a broader budget bill over the issue.
Turnabout is fair play
What the FCC giveth on a partisan vote it can taketh away.
Republicans have been touting their net neutrality legislation by pointing out a political reality: The rules could be reversed if a GOP candidate wins the presidency.
The party in control of the White House gains a 3-2 majority on the FCC. And a Republican-majority on the agency could vote to reverse the net neutrality rules.
The same thing just happened.
In 2002, the Republican majority on the FCC voted 3-2 to classify broadband as a lightly regulated information service; 13 years later, with Democrats in control, the agency reversed itself.
Ajit Pai, the other Republican member of the FCC, noted that possibility after Thursday’s vote.
“President Obama’s plan could be vacated by the courts, overturned by Congress or could be rejected by a future commission,” he said. “I’m confident that at least one of these things will happen.”
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