FCC Prepares to Unveil Plan to Gut Net Neutrality

[Len]

THE FEDERAL COMMUNICATIONS Commission this week is widely expected to release its plan to reverse Obama-era net neutrality rules that banned internet service providers from blocking or slowing down content or creating so-called "fast lanes" for companies willing to pay extra to deliver their content more quickly.

We don't know the details of the plan yet, but Republican FCC chair Ajit Pai made it clear earlier this year that, at the very least, he plans to overturn a decision that reclassified broadband internet providers as "common carriers," like telephone companies. If internet providers are no longer considered common carriers, it would be hard for the FCC to enforce any rules against slowing down certain sites or apps.

Barring a last-minute change of heart by one of the three Republican commissioners, the order will likely be approved during the agency's next open meeting on December 14.

Jettisoning net-neutrality rules would make it easier for companies like AT&T, Comcast, and Verizon to give their own streaming video services priority over others, such as Amazon Prime or Netflix. It could also make it easier for companies to impede voice and messaging tools like Skype and WhatsApp.

Of course well-established services from deep-pocketed companies like Google, Facebook, and Microsoft will likely remain widely available. But net-neutrality advocates argue that smaller companies that don’t have the money to pay for fast lanes could suffer. In other words, protecting net neutrality isn't about saving Netflix, but about saving the next Netflix.

Previous FCCs have largely agreed. The agency first moved to protect net neutrality in a 2005 policy statement declaring that internet users had a right to access the content and services of their choosing. Under that policy, the FCC in 2008 ordered Comcast to stop slowing BitTorrent connections; the cable giant challenged the ruling, arguing that the agency had overstepped its authority, and won. The Obama-era FCC passed a more robust set of rules in 2010, but those were struck down in 2014 following a lawsuit filed by Verizon.

Under then Chair Tom Wheeler, the FCC then decided that the best way to ensure its authority to enforce net-neutrality rules was to reclassify broadband internet providers as common carriers.

Despite broad support for net neutrality among both Democratic and Republican voters, Republican politicians rallied against Wheeler's net-neutrality rules before they even passed. US Senator Ted Cruz of Texas called net neutrality "Obamacare for the Internet," and Donald Trump warned, nonsensically that it would "target conservative media." The FCC ultimately passed the rules along a party-line vote.

Narrowing the rules

Pai has narrowed the scope of the rules since taking over as chair in January. In February, for example, he ended an investigation into whether AT&T and Verizon used data limits for anticompetitive purposes, effectively ruling that the two companies could exempt their own video services from customers' data caps but still charge for data used by their competitors’ services.

If the FCC approves the plan next month, it likely would take effect early next year. Comcast, the nation's largest home internet provider, is banned from blocking or throttling content under the terms of its 2011 merger with NBCUniversal, but that ban expires next year. Charter faces similar rules as the result of its merger with Time-Warner Cable that don't expire until 2023.

Before it is even approved, consumer groups are already preparing to challenge the new order in court. The Administrative Procedure Act act bars federal agencies from making "arbitrary and capricious" decisions, in part to prevent federal regulations from yo-yoing every time a new administration is in court. Given the agency just defended the original net neutrality order in court last year, consumer groups may have a case that Pai's new order is capricious.

Congress also could intervene. Despite earlier lawsuits by Comcast and Verizon, the broadband industry now says it would welcome laws banning blocking and throttling content so long as providers aren't classified as common carriers. Whether Congress would or could actually draft a robust net neutrality order is another question entirely.