The Federal Communications Commission (FCC) published its official order (PDF) repealing net neutrality rules in the Federal Register on Thursday. This follows the December vote by the commissioners — 3-2 in support of Chairman Ajit Pai’s campaign to abandon the Open Internet Order that began in 2005 and was finally approved by the FCC in 2010.
The basic tenet of net neutrality is that internet service providers may not favor one customer over another. ISPs contend that basic business principles should allow them to offer discounts to major customers. Neutrality supporters fear that this could only be achieved by charging small customers at a higher rate — and that this would inevitably affect innovation by favoring the existing large customers. Side effects would include the ISPs effectively having the ability to block websites.
Although the FCC ruling is now official, it won’t come into effect until April 23; that is, 60 days after publication in the Federal Register. It still has hurdles. Led by New York State attorney general Eric Shneiderman, 23 states have immediately petitioned (PDF) for a judicial review of the Order. The petition asks the court of appeals for the district of Columbia to determine that the order is “arbitrary, capricious, and abuse of discretion”. They claim it violates both the Constitution and the Communications Act of 1934, and they “request that this Court hold unlawful, vacate, enjoin, and set aside the Order.”
At the same time, several of the states are planning their own state-level net neutrality laws — effectively telling the ISPs that if they operate the new FCC rules, they won’t be allowed to do business in their states.
In San Francisco, Mayor Mark Farrell, who chairs the city’s Blue Ribbon Panel on Municipal Fiber, released recommendations designed to stop ISPs compromising net neutrality principles. The plan is for San Francisco to own its own high-speed fiber network. “On the day the FCC is releasing its plan to repeal net neutrality and vital consumer protections, I am releasing San Francisco’s plan to fight back against this misguided move that will dismantle the Internet as we know it,” Farrell said in a statement.
Meanwhile, in January, Sen. Ed Markey, D-Mass. gathered the support of all his Democratic colleagues, plus one Republican (Sen. Susan Collins of Maine) seeking to kill the order under the Congressional Review Act. If the Democrats are able to gain one more vote in the Senate to overcome the Republican majority, they will be able to prevent the FCC repealing net neutrality both now and again in the future. In reality, this is unlikely since it will require the Senate Majority Leader and the House Speaker — both Republicans — to schedule a vote before April 23.
A Consumer Reports survey of more than 1000 Americans in 2017 showed consumer support for the existing net neutrality rules. “One main finding,” says the report, “was that the majority of Americans — 57 percent — support the current net neutrality regulations that ban ISPs from blocking or discriminating against lawful content on the internet.” Only 16% opposed the existing rules. “An even larger majority — 67 percent — said that ISPs shouldn’t be allowed to choose which websites, apps, or streaming services their customers can access.”
In a statement yesterday, the Consumers Union said, “We urge Senators to listen to the consumers they represent and vote to restore these critical net neutrality rules to ensure that internet service providers aren’t the gatekeepers to the internet.”
During the public comment period for the repeal of net neutrality, the FCC received millions of comments. The process was not without its critics. At one point, the FCC’s website went off-line, supposedly either under the weight of comments being submitted or an unrelated DDoS attack. Neutrality activists, however, claimed that the FCC took the website offline to hinder the receipt of negative public comments.
Since then Schneiderman’s office undertook its own investigation into the public comments. Among the millions received by the FCC, it concluded that around 2 million were fraudulent, being submitted by people posing to be others — both living and dead.
This may be partly the motivation for FCC commissioner Jessica Rosenworcel’s comments. Rosenworcel was one of two FCC commissioners to vote against the repeal. “This agency has failed the American public,” she said. “It turned a blind eye to all kinds of corruption in our public record, from Russian intervention to fake comments to stolen identities in our files. As a result of the mess the agency created, broadband systems will now have the power to block websites, throttle services and censor online content. This is not right,”
America has entered the final stage of the net neutrality debate. Ajit Pai’s new approach is in the driving seat — but the next 60 days will decide whether he succeeds or not.