FCC Launches Process to Roll Back Foundation for Net Neutrality Rules

Ajit Pai FCC

More than two years after the FCC passed a robust set of net neutrality rules, the commission on Thursday set in motion a proposal to largely reverse its approach.

The commission voted 2-1 on Thursday to launch a proceeding to repeal the legal foundation for the FCC’s current rules, which ban internet providers from favoring or disfavoring content based on the way they deliver content traffic to their subscribers.

The latest proposal, championed by Chairman Ajit Pai, would roll back the FCC’s classification of internet service as a common carrier, a move known in regulatory parlance as “Title II.” That move, made in 2015 after nine months of contentious debate, was vigorously opposed by the cable and telecom industry, but viewed by many public interest groups as necessary to give the FCC the authority to establish rules that had legal heft.

The current proposal also leaves open the question of just what the net neutrality rules should be, if the FCC reverses itself on reclassification. The FCC will now open a public comment period that will last through most of the summer, with a vote expected in the fall.

“The internet was not broken in 2015. We were not living in a digital dystopia,” Pai said, calling the FCC’s approach back then as heavy-handed regulations.

“As a result of these rules, small ISPs faced new regulatory burdens associated with common carrier compliance,” he said. “Providers hoping to offer consumers new, even free services had to fear Washington bureaucracy that might disapprove and take enforcement action against them.”

He said that the proposal draws on the “Clinton-era, light-touch approach.”

Commissioner Michael O’Rielly said that the new proceeding will be much more comprehensive that the FCC’s previous one, taking into account the economic impact of the rules.

Pai claimed that investment in internet infrastructure declined for the first time since 2015. Those figures have been countered by studies from public interest groups and the Internet Association, which represents major internet firms like Google, Netflix, and Facebook.

Mignon Clyburn, the sole Democrat on the commission, dissented. She noted that she was in Los Angeles’ Skid Row last week, where she heard from a number of very low-income residents of the necessity of them to have access to an open internet to take advantage of services like online job applications.

The proposal, she said, “contains a hollow theory of trickle-down internet economics, suggesting that if we just remove enough regulations from your broadband provider, they will automatically improve your service, pass along discounts from those speculative savings, deploy more infrastructure with haste, and treat edge providers fairly.”

She added, “While the majority engages in flowery rhetoric, about light-touch regulation and so on and so forth, the endgame appears to be no-touch regulation and a whole scale destruction of the FCC’s public interest authority in the 21st century.”

Given that Pai and O’Rielly, his fellow Republican on the FCC, opposed the FCC’s 2015 move to reclassify the Internet, there is every expectation that they will ultimately vote to reverse it.

That said, the current proceeding is already proving contentious.

Outside the FCC on Thursday, net neutrality advocates held a demonstration, and they were joined by a number of Democratic lawmakers such as Rep. Jared Polis (D-Colo.), Sen. Ron Wyden (D-Ore.), and Sen. Ed Markey (D-Mass.).

Earlier this month, “Last Week Tonight” host John Oliver did a segment on his HBO show, urging viewers to file comments with the FCC to retain the current rules, just as he did as the commission considered net neutrality in 2014 and 2015. Ultimately, about 4 million comments were filed back then, and more than 1.5 million have been filed so far in the current proceeding.

Michael Copps, a former FCC commissioner who is now special adviser to Common Cause, predicted that there would be a similar outpouring this year.

“It became a national issue and a public issue, and this episode shows every sign of the same,” he said in an interview on Wednesday. “Already, there have been a million and half comments filed, and they are heavily toward not changing the rules.”
He also said that lawmakers could face increasing questions from constituents as they go back to their districts for town halls.
The FCC has struggled for more than a decade to establish either net neutrality standards or regulations. A set of net neutrality principles were overturned by an appellate court in 2010. That led to the FCC’s passage of a set of rules later that year. But those, too, were challenged in court, leading to the FCC’s move toward reclassification in 2015.
On the Senate floor on Thursday, Sen. John Thune (R-S.D.), chairman of the Senate Commerce Committee, called for a bipartisan compromise on net neutrality for legislation, saying that he believes “we can find common ground to protect the internet so long as we don’t fixate on the misguided notion that monopoly regulation is the only way to preserve it.”
Thune, a critic of the FCC’s current approach, called for “a statute offering clear and enduring rules that balance innovation and investment throughout the entire internet ecosystem.”
He has previously suggested that Democratic lawmakers would be willing to negotiate once they see that the FCC was moving toward repeal.
“While the FCC’s 2015 order may soon be consigned to the dustbin of history, the last few months have shown that political winds can and often do shift suddenly,” he said.
He added, “It is time for Congress to finally settle this matter.”