This appears to be a reasonably level headed analysis of the next steps in the
“Net Neutrality” process.
What’s Next in the Wake of the FCC’s Net-Neutrality Decision
December 16, 2017 4:00 AM
Editor’s Note: The following piece originally appeared at AEIdeas, a
public-policy blog produced by the American Enterprise Institute. It is adapted
here with permission.
Well, it’s finally upon us. After three weeks of relentless public debate about
net neutrality — including a steady stream of racist, despicable personal
attacks on Chairman Ajit Pai and his family — we finally reached the day of
action. Thursday, the Federal Communications Commission (FCC) approved the
Restoring Internet Freedom Order by a 3–2 vote.
Contrary to the dominant narrative in some circles, the vote will not end the
Internet as we know it, silence minority voices online, or impose Portuguese
balkanized consumer-access plans (which, it turns out, doesn’t even happen in
Portugal). What will happen is that the order will repeal the Commission’s 2015
Open Internet Order and restore the agency’s historical classification of
broadband access as a lightly regulated information service under the
Communications Act. The order also enhances the transparency rules governing
disclosure of network-management practices.
So what happens next? This post discusses the likely next steps for each of the
major players in the net-neutrality debate.
What’s Next for the Agency: Finalizing the Order
The Commission has done an impressive job shepherding a high-profile issue
through the public rulemaking process. For all the talk by opponents about
failing to respond to public inquiries, by any objective measure, Chairman Pai
has presided over a much more transparent process than his predecessor did in
2015. He released the draft order for public review three weeks before the
vote. In 2015, then-chairman Tom Wheeler did not make the order public until
after the final vote, which tilted pre-vote public discourse in favor of those
who had received leaked copies of the order. Picking winners and losers indeed.
By comparison, the public debate since Thanksgiving has been by turns
substantive and raucous, but at least it was conducted on a level playing field
information-wise, and the agency is to be commended for that.
Nonetheless, the Commission must clear several procedural hurdles before the
order becomes law. First, it must finalize the text, which may shift in minor
ways because of ongoing dialogue between the majority and dissenting
commissioners. After that, the Commission must submit the order to the Office
of Management and Budget (OMB), which will review the order’s transparency
requirements to make sure it is not imposing a greater paperwork burden on
providers than necessary. It must also provide a copy of the order to Congress
and the Government Accountability Office for review under the Congressional
Review Act (CRA), as discussed below. Once OMB approves the order, the agency
will publish it in the Federal Register, and it will take effect 60 days after
What’s Next for Opponents: Congressional and Court Challenges
Title II supporters have vowed to continue fighting the agency, and after the
vote, they will have two opportunities to do so. As noted above, the CRA allows
Congress a chance to override certain agency orders. This was how Congress
repealed the FCC’s privacy rules earlier this year. But although some
representatives have suggested challenging the rules in Congress, this effort
is unlikely to succeed. CRA repeal requires a majority of both chambers and
either presidential approval or a veto override. Because it is unlikely that a
president will actively undermine an agency in his administration, Congress has
successfully deployed the CRA process only during periods of presidential
Of course, there is also the inevitable legal battle to challenge the agency’s
order. My AEI colleague Gus Hurwitz has canvassed the most likely arguments
here. Rather than repeating them, I will simply agree that administrative law
strongly favors the agency, and prior litigation on this issue has reinforced
the court’s position that the agency is free to decide how best to classify
broadband providers as long as it follows appropriate procedures when doing so.
What’s Next for Consumers: Business as Usual
Despite all the Sturm und Drang about preserving net neutrality, American
consumers are unlikely to notice a difference when the order is adopted. The
rule simply restores the legal framework that governed broadband providers
before 2015. All major providers have committed to no-blocking and
no-throttling practices in their terms of service, and the repeal will restore
the Federal Trade Commission’s authority to thwart anticompetitive behavior.
What’s Next for Congress: Revisiting the Communications Act
Hopefully, the repeal of the 2015 Open Internet Order will jump-start a
conversation in Congress about real telecommunications reform, a conversation
that started a few years ago with the #CommActUpdate but seems to have stalled
lately. Net-neutrality supporters have painted the Restoring Internet Freedom
Order as some kind of four-dimensional chess by Chairman Pai to force Congress
to act, which they argue would be capitulation to broadband providers. But the
reality is that the Communications Act is embarrassingly out of date. It was
last updated in 1996, when half of America lacked Internet access and the other
half mostly accessed the Internet via dial-up. The act’s confusing and outdated
language is largely to blame for the perpetual ping-pong matches at the FCC
regarding broadband regulation. No matter which path the FCC takes, its
approach is equivalent to fitting square pegs into round holes.
There seems to be a loose consensus among stakeholders in support of a regime
that would prohibit blocking and throttling, subject to reasonable network
management and the ability to offer a curated Internet product, coupled with
antitrust-like review of prioritization agreements to deter anticompetitive
behavior. In this way, the Commission could serve as a sector-specific
antitrust authority. The details must be fleshed out, but Capitol Hill must
play the primary role in providing some much-needed stability to this area of
the law. Only Congress can clarify what role (if any) the nation’s
telecommunications regulator should play with regard to the primary
telecommunications network of the 21st century.
— Daniel Lyons is a visiting fellow at the American Enterprise Institute.