Most people would assume that the Federal Communications Commission would be fighting for their rights, but when it comes to net neutrality, the FCC is fighting for big telecom instead. A court decision on Monday went against their wishes though.
The US Court of Appeals covering the District of Columbia Circuit denied the broadband industry’s petition to have the net neutrality case reheard. A panel consisting of three judges ruled 2-1 in favor of the FCC.
It seems like that FCC would be happy to have their decision upheld, but the Trump administration is turning back the clock on many regulations. New FCC Chairman Ajit Pai, opposed this ruling when it was implemented by former chairman Tom Wheeler.
Pai announced last week of his desire to dismantle net neutrality rules along with ISP’s being classified as common carriers under Title II of the Communications Act.
The ISPs and broadband industry lobby groups that sued the FCC wrote to the DC Circuit court on Friday to alert judges of the new FCC proposal. Judges noted in today’s order that “the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement.”
Pai quickly stated that he was not surprised by the court’s decision.
“In light of the fact that the Commission on May 18 will begin the process of repealing the FCC’s Title II regulations, it is not surprising, as Judges [Sri] Srinivasan and [David] Tatel pointed out, that the DC Circuit would decide not to grant the petitions for rehearing en banc,” Pai said today. “Their opinion is important going forward, however, because it makes clear that the FCC has the authority to classify broadband Internet access service as an information service, as I have proposed to do. I also agree with many of the points made by Judges [Janice] Brown and [Brett] Kavanaugh in their compelling opinions explaining why the Commission’s Title II Order was unlawful.”
Consumer advocacy group Public Knowledge offered a different take. “The DC Circuit has once again confirmed that the FCC’s Open Internet rules are lawful and supported by the evidence,” Public Knowledge Senior Counsel John Bergmayer said. “Now, the primary threat to these important consumer protections is FCC Chairman Pai’s determination to roll them back and to hand more power to monopolistic Internet access providers.”
Incompas, a trade group that represents pro-net neutrality companies, said that “the current law has shown itself to be both legally sustainable and market effective.”
Judge Sri Srinivasan, who helped write the original opinion in favor of net neutrality, said reconsidering the case would be “particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s order.” He noted that the agency would soon consider replacing the policy with a different one.
But Srinivasan said the earlier ruling should stand even apart from the move to repeal net neutrality. He said the rules assure that broadband providers “live up to their promise to consumers of affording them neutral access to internet content of their own choosing.”
In separate dissents, Judges Janice Rogers Brown and Brett Kavanaugh said the FCC took action that should have been left to Congress. Kavanaugh also said the rules violate the First Amendment.
To pass the rules, the FCC said it had the power to regulate broadband internet service as a utility, much like telephone service. The commission made the decision after President Barack Obama publicly urged it to protect consumers by doing so.
But the FCC under President Donald Trump could change the rules or simply decline to enforce them. Congress may also write a new law that lays out net neutrality rules and what authority the FCC has to police broadband service.
“Net neutrality” regulations, designed to prevent internet service providers like Verizon, AT&T, Comcast and Charter from favoring some sites and apps over others, are on the chopping block. The head of the Federal Communications Commission, Ajit Pai, on Wednesday proposed undoing the Obama-era rules that have been in place since 2015.
Here’s a look at what the developments mean for consumers and companies.
WHAT IS NET NEUTRALITY?
Net neutrality is the principle that internet providers treat all web traffic equally, and it’s pretty much how the internet has worked since its creation. But regulators, consumer advocates and internet companies were concerned about what broadband companies could do with their power as the pathway to the internet – blocking or slowing down apps that rival their own services, for example.
WHAT DID THE GOVERNMENT DO ABOUT IT?
The FCC in 2015 approved rules, on a party-line vote, that made sure cable and phone companies don’t manipulate traffic. With them in place, Comcast can’t charge Netflix for a faster path to its customers, or block it or slow it down. Several internet providers said they didn’t plan to do those things and Comcast said Wednesday that it supported undoing the net neutrality rules but did not “block, throttle or discriminate” against internet content.
The net neutrality rules gave the FCC power to go after companies for business practices that weren’t explicitly banned as well. For example, the Obama FCC said that “zero rating” practices by AT&T violated net neutrality. The telecom giant exempted its own video app from cellphone data caps, which would save some consumers money, and said video rivals could pay for the same treatment. Pai’s FCC spiked the effort to go after AT&T, even before it began rolling out a plan to undo the net neutrality rules entirely.
A federal appeals court upheld the rules in 2016 after broadband providers sued.
WHY IS THE INDUSTRY OPPOSED?
Companies say they don’t want the stricter regulation that comes with the net neutrality rules. They say the regulations can undermine investment in broadband and introduced uncertainty about what were acceptable business practices. There were concerns about potential price regulation, even though the FCC had said it won’t set prices for consumer internet service.
WHAT’S CHANGING FOR CONSUMERS?
Nothing, for now.
The FCC is a slow-moving agency, so Pai’s announcement merely kicks off a months-long procedure to undo the rules. Democratic lawmakers, activists and companies that support net neutrality have pledged to defend them. Republican lawmakers who opposed the 2015 rules on Wednesday invited Democrats in Congress to work on net neutrality legislation that would take precedence over FCC regulations.
In the long run, net-neutrality advocates say undoing these rules makes it harder for the government to crack down on internet providers who act against consumer interests and will harm innovation. Those who criticize the rules say undoing them is good for investment in broadband networks.