WASHINGTON — How internet access should be regulated, if at all, has been the subject of an ongoing battle for well over a decade. Federal Communications Commission chairman Ajit Pai has fired the latest salvo and the battle lines are being drawn once again at the commission, on Capitol Hill and in the courts.
Verizon Communications, whose challenge to the last set of rules resulted in the court decision that eventually morphed into reclassification of broadband under Title II of the Communications Act, took to YouTube to explain why wiping away such common-carrier classification was the right way to go. In a video, Verizon general counsel Craig Silliman said emphatically that ISPs were not looking to get out from under open internet rules, instead just supporting putting Open Internet rules on “a different legal footing” in “an enforceable way.”
The best defense is a good offense, so Silliman talked about the advocacy groups that like to use the issue to raise funds and “stir people up with outrageous claims.”
SUPPORT GROUP FORMS
Elsewhere, one of President Donald Trump’s former state campaign directors has launched a group, Free Our Internet, which sounds as though it could be for supporters of Title II but, in fact, puts the blame on the left and Silicon Valley “monopolies.”
Former FCC chairman Tom Wheeler justified his Title II approach by saying it was necessary to ensure rules could be applied to the gatekeeper internet service providers he said were the threat to openness.
“In a well-coordinated and secretive campaign orchestrated by George Soros, other far-left funded activist groups, and Silicon Valley companies like Google and Facebook, President Obama passed rules in 2015 that gave the federal government virtually unlimited powers over the internet for the first time in history,” said former Trump Maine campaign coordinator Christie-Lee McNally, who launched Free Our Internet. “This gave the federal government and its Silicon Valley allies free reign to control our nation’s communications apparatus, together.”
That effort from the left has been an attempt to “censor conservative news, ban conservative voices and manipulate content across their platforms to benefit their political agenda,” she said.
That is in contrast to some complaints from the right that rolling back Title II would give the left more opportunity to chill conservative voices via the “liberal” media President Trump is consistently vilifying.
The FCC is expected to vote May 18 on Pai’s plan to reclassify wired and mobile ISPs as information services not subject to Title II and review the Open Internet order rules. Pai also wants to get the FCC out of the business of regulating interconnection and throw out the internet conduct standard it can use to review a host of commercial practices and business plans on a case-by-case basis.
ISPs have called on Congress to step in and clarify the FCC’s authority, which at baseline means to clarify that they are not common carriers. One cable executive said that could be a long process, if it happens. Even Pai has signaled he would be happy for Congress to provide “rules of the road” as he tries to rewrite the current ones.
The FCC process could be a long one. Pai has essentially crowd-sourced the issue, seeking answers to a host of questions, allowing for three months of comment and signaling the process was just beginning. But it clearly looks like Title II classification is going away, one way or the other. It is less clear how the bright-line rules against blocking, degrading and paid prioritization will fare.
The U.S. Court of Appeals for the D.C. Circuit has added a new wrinkle, denying full-court review of its three-judge panel decision upholding Title II reclassification. It pointed out that the FCC was already reconsidering the decision, so it did not want to find itself in the position of “examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement.” Sen.
Mike Lee (R-Utah) has already introduced a bill to roll back Title II, one that would mirror a Congressional Review Act resolution like the one that repealed the FCC’s broadband privacy regulations.
It would nullify the 2015 Open Internet Order and prevent a similar rule from being adopted in the future. That is in contrast to calls from some other Republicans for a bipartisan bill, since nullification does not sit well with Democrats or net neutrality activists.
“You would have to be a fool to think [the Republicans] are actually going to legislate something that is going to be anywhere near as protective [of net neutrality],” said Rep. Frank Pallone (D-N.J.) at the appropriately named New America event, “The Fight for Net Neutrality Begins Again.”
“It’s particularly telling that they would introduce such a polarizing bill that would eliminate the current open internet protections even as Republican leaders urge Democrats to work with them on compromise legislation,” Public Knowledge associate policy counsel Kate Forscey said. “This suggests that Republican- led legislation protecting net neutrality is not as they like to claim, and some remain hell bent on extinguishing the open internet as we know it.”
COURT CHALLENGES BREW
The D.C. Court decision paves the way for direct appeals of the panel’s decision to the Supreme Court, as various parties have promised. It’s likely the court wouldn’t hear such an appeal until sometime next year — if it agrees to hear it at all.
Any legislative approach would likely not happen until then, too, said one cable executive speaking not for attribution.
VoIP pioneer Daniel Berninger said he is definitely appealing the decision to the Supreme Court, but said he will wait for three months or so “to avoid revealing his cards to the opposition. I also plan to petition the court to change the caption in the case to Berninger v. FCC to give the entrepreneur perspective more visibility.”
Then there is the court of public opinion. At press time, petition drives were underway, in addition to calls for protests and comments to again flood the FCC.
What’s Next on Each Front?
The FCC: The agency plans to vote May 18 on the notice of proposed rulemaking, triggering a three-month comment period — or more if the FCC extends the mid- August cutoff. The NPRM asks a ton of questions in what has been likened to a “crowd-funding” approach to how to proceed. Of course, there is still the possibility that Democrat Mignon Clyburn could sit out the meeting and deny the chairman the quorum he needs to launch the review.
Congress: Sen. Mike Lee (R-Utah) just introduced (see story) a bill to nullify the FCC’s Open Internet rules and prevent their return. That would almost certainly gain no Democratic support. Both Democrats and Republicans say that legislation is needed to provide regulatory certainty. Sen. Bill Nelson (D-Fla.), ranking member of the Senate Commerce Committee, said last week that while a bipartisan bill was necessary, it appeared impossible in the current climate, though he would keep trying. Sen. John Thune (R-S.D.), chairman of the committee, said he would too, and signaled he thought Pai’s initiative could spur a legislative solution.
The Courts: The challenge to Title II could be on a parallel track to the Supreme Court after a D.C. federal appeals court again declined to overturn the FCC’s Title II classification. If the Supreme Court were to take the appeal, arguments would likely not happen until early 2018.
— John Eggerton
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