Net Neutrality: After Wednesday’s FCC Deadline, What’s Next?

John Oliver Net Neutrality

WASHINGTON — Wednesday marks the deadline for comments in a Trump-era FCC proposal to roll back the foundation for existing net neutrality regulations, but the battle over rules of the road for the internet is far from over.

As of Wednesday morning, almost 22 million comments had been received, shattering all previous records, but there has been considerable interest in just how many of the comments are real and substantive, versus how many are generated by bots or other suspicious sources.

That has been the source of controversy ever since John Oliver, on his HBO series “Last Week Tonight,” urged viewers in May to file comments to oppose the action.

Under consideration is a proposal to repeal the FCC’s classification of internet service as a “Title II” telecommunications service. That regulatory maneuver was necessary for the FCC to pass a robust set of rules that prohibit internet providers from blocking or throttling content, or from selling speedier traffic to the consumer.

The research firm Emprata released the results of a study commissioned by Broadband for America, representing major internet providers that favor rolling back Title II, that showed that a staggering number of comments, 20.7 million, are form letters, duplicates, or from email domains that “appear to be artificial.” Emprata said that more than 7.75 million comments appeared to be generated by “temporary” and “disposable” email domains linked to fakeemailgenerator.com. Virtually all oppose repeal.

But net neutrality advocates point to another finding from Emprata’s report, that there are more unique, non-form letter comments submitted against repeal, 1.77 million, versus for repeal, or 24,000.

Emprata’s Paul Salasznyk said that even though the analysis was commissioned by Broadband for America, “we conducted it in an independent fashion, forming our own conclusions.”

Broadband for America, which favors repeal, touted another finding, that when accounting for “obviously fake email domains” and “unverifiable international comments,” rolling back Title II is favored by 69.9% to 29.5%.

Evan Greer, the campaign director for Fight for the Future, which is pushing for retaining the existing rules, said in a statement that “the telecom industry’s own study essentially shows what nearly all other polling on this issue has shown: that they are getting trounced when it comes to public opinion, and people from across the political spectrum overwhelmingly agree that they don’t want their ISPs to have control over what they can see and do on the internet.”

Now, let’s break down what these comments mean for the courts and Congress, and where the two government bodies stand.

Courts: This is a big reason why the comments matter.

Chairman Ajit Pai in all likelihood has the votes to repeal Title II, and if the FCC makes that move, it’s almost a given that net neutrality will once again end up in court.

Pai needs a record to demonstrate why it is urgent to make the change, just over two years after the rules were passed. He has not said how the FCC will do its own analysis of the comments, but that “infrastructure investment, the effect on innovation and importance of access — these are the kinds of questions we want to learn about.”

Congress: Senate Commerce Committee Chairman John Thune (R-S.D.) has said that the issue needs a legislative solution, and he’s suggested that Democrats may come to the table if the FCC moves toward repeal.

The House Commerce Committee, meanwhile, is planned a Sept. 7 hearing on net neutrality, with an eye toward pursuing a net neutrality bill. That hearing, though, has been postponed.

“As negotiations progress on a permanent solution for net neutrality that ensures a free and open internet, the committee will postpone the original hearing in order to allow talks between stakeholders to continue,” a spokesman for the committee said. 

Comcast is among the ISPs championing legislation. David L. Cohen, its senior executive vice president, wrote in a blog post on Wednesday that “we stand ready to work with policymakers, legislators, and stakeholders to end this regulatory back-and-forth and craft an effective and enduring solution for consumers and the U.S. economy. Ping pong should be for players, not policy.”

Democrats, though, are still skeptical that a Republican-led bill will be strong enough and will strip the FCC of its authority over the internet.

“Net neutrality proponents like myself would rather take our chances in court than agree to bad legislation,” said Gigi Sohn, former counselor to FCC Chairman Tom Wheeler and now a distinguished fellow at Georgetown University Law School.

“We stand ready to work with policymakers, legislators, and stakeholders to end this regulatory back-and-forth and craft an effective and enduring solution for consumers and the U.S. economy,” he said. “Ping pong should be for players, not policy.”