The Federal Communications Commission will publish on Wednesday 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.
The new FCC order will throw out almost all of the agency’s 2015 net-neutrality rules, including the prohibitions on blocking and throttling content, senior FCC staff said during a conference call with reporters Tuesday. The order will also ban states from imposing their own net-neutrality rules to replace the federal regulations.
The order also reverses the decision to classify both mobile and home broadband internet services as “common carriers” like telephone services. That change will allow the Federal Trade Commission to enforce antitrust laws against broadband providers should they engage in anticompetitive behavior. The order will also require broadband providers to publicly disclose if they block or slow content, or accept payments from companies for preferential treatment.
“Under my proposal, the federal government will stop micromanaging the internet,” FCC chair Ajit Pai said in a statement Tuesday. “Instead, the FCC would simply require internet service providers to be transparent about their practices so that consumers can buy the service plan that’s best for them and entrepreneurs and other small businesses can have the technical information they need to innovate.”
The FCC’s two Democratic members blasted the proposal. “Following actions earlier this year to erase consumer privacy protections, the Commission now wants to wipe out court-tested rules and a decade’s work in order to favor cable and telephone companies,” Commissioner Jessica Rosenworcel said in a statement. “This is ridiculous and offensive to the millions of Americans who use the Internet every day.”
But the GOP has a majority on the commission. 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 (R-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 that 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.
UPDATED, Nov. 21, 3:30 PM: This article has been updated to include details of the planned policy from FCC staffers and commissioners.