Net Neutrality Will Not Fade Away

Two years ago, after months of deliberation and nearly 4 million public comments, the Federal Communications Commission (FCC) voted to approve rules enshrining the concept of net neutrality: the idea that ISPs should treat all traffic on their networks the same regardless of sender, receiver, or application. These rules, described and discussed in the FCC’s 2015 Open Internet Order (OIO), were immediately challenged in court by several telecommunications companies opposed to the change. Nevertheless, the legal challenge was unsupported.  Last June, the D.C. Circuit upheld the OIO and the FCC’s authority to regulate ISPs under Title II of the Communications Act. After a decade of thoughtful examination and leadership, the FCC had successfully secured meaningful protection for consumers and the open internet.

A free and open internet is vital to democracy because it enables access to information from incredibly diverse sources, provides a means of distributing political messages, and facilitates organized action and engagement. Net neutrality regulations with meaningful oversight and enforcement ensure that ISPs cannot interfere with or unduly influence how we interact with online sources. In this, the interests of users across the political spectrum are united.

A free and open internet is vital to democracy

It is no secret, however, that the telecom industry, the new FCC chairman, and many members of Congress still oppose the FCC’s regulation of ISPs to preserve the internet’s openness. My blog feed is filled with stories already mourning the end of net neutrality, and it is true that there are some politically powerful interests behind the push to undo both the FCC’s efforts and its authority. But even in the current political landscape, this is far from a sure thing. To the contrary, any efforts to reverse the rules would be filled with political landmines for those leading the charge, and offering no easy paths to victory.

The three most likely avenues by which the FCC’s net neutrality regulations might be undone are:

1. The industry groups in the D.C. Circuit litigation could get their case in front of the Supreme Court which might overturn the rules,
2. The FCC can change its mind about its decision to classify broadband internet as a “telecommunications service” and/or rewrite its own rules, or
3. Congress can legislate the rules and the FCC’s authority away.

Of these three, the judicial avenue is least likely. The other two may offer more to net neutrality opponents, in terms of control over the process, but neither is likely to bring a quick or clean end to net neutrality.

Actions by the FCC involving either a substantial rewrite of the rules or reclassification of broadband as an “information service” would be subject to Administrative Procedure Act (APA)  notice-and-comment requirements. This process is a lengthy one, with extensive public engagement. The public turned out in force supporting the original net neutrality rules.  As activists turn to the internet in increasing numbers – think transmitting encounters with the police in real time on Facebook Live or using Facetime to communicate with deported loved ones – these same activists are going to turn out to defend their access to these critical services.  Moreover, an abrupt about-face on broadband classification would be almost impossible to justify without running afoul of the APA’s “arbitrary and capricious” standard. In the long run, this avenue would inevitably wind up back in the hands of the courts.

Publicly undermining the interests of every internet user in America will not be an easy task.

Congressional intervention, for better or worse, offers more permanence. It is also more susceptible to mission creep. Indeed, there has already been talk of turning net neutrality into an opportunity for a substantial rewrite of the Communications Act. Not only would this be a lengthy process, it would be a complex one requiring the reconciliation of broadly diverse interests across a number of issues. Even if a more focused bill is ultimately proposed, it will be subject to intense scrutiny from a politically engaged public as well as organizations like CDT. A bill that claims to preserve net neutrality but offers little or no oversight or enforcement ability will not be welcomed as a compromise.

A free and open internet benefits everyone, from those wearing red baseball caps to those wearing pink knitted cat hats. The FCC recognized that the value of this benefit depends on strong protections against ISPs’ incentives to leverage their positions as gatekeepers to achieve anti-competitive ends. These incentives will not fade. Lawmakers and regulators should be wary of rolling back effective regulations and the authority to enforce them, especially when doing so advances only the interests of the regulated entities. Publicly undermining the interests of every internet user in America will not be an easy task.