On the afternoon before Thanksgiving, the FCC released a highly-anticipated draft of the Restoring Internet Freedom Order its commissioners will vote on in the Commission’s December 14 open meeting. The order, which will likely pass on a 3-2 party line vote, follows through on Chairman’s Pai’s proposal earlier this year to reclassify broadband back to an “information service” and largely eliminates all of the net neutrality rules the Commission passed in 2015. CompTIA filed comments in the proceeding back in July, and while we were agnostic as to broadband’s classification, we asked the FCC to retain some form of net neutrality rules to protect businesses operating online. Unfortunately they did not oblige.
Prior to the FCC’s 2015 Open Internet Order, which classified broadband internet access service (BIAS) as a “telecommunications service,” broadband was considered an “information service,” and had been for many years. The history behind the two terms is long and complex, but in short, telecommunications services are more heavily regulated than information services. The FCC made the decision to classify BIAS as a telecommunications service in 2015, at least in part, to provide solid legal footing for net neutrality rules after the Court of Appeals for the DC Circuit had overturned a previous effort to pass such rules.
CompTIA argued then, as we did earlier this year, that the FCC could pass net neutrality rules even if BIAS was classified as an information service if done properly. In fact, the DC Circuit laid out a blueprint for how it could be done. But the Commission chose to go in a different direction in 2015 and reclassified BIAS as a telecommunications service. The Restoring Internet Freedom order would undo that 2015 decision and reinstate BIAS as an information service.
CompTIA argued in our comments that there were positives and negatives to both classifications, but that if the Commission chose to reclassify, it should still retain rules to prevent ISPs from blocking, throttling and some forms of paid prioritization. The Commission decided to go in a different direction, and in addition to reclassifying BIAS, they also chose to eliminate the no-blocking, no-throttling, no paid prioritization, and Internet Conduct Standard completely. They retained only a modified version of their transparency rule. The order also forbids states from passing their own individual net neutrality rules so as to avoid a patchwork of conflicting state laws.
In place of the rules, the Commission argues that market forces and the FTC, using their consumer protection and antitrust powers, will help keep the internet open. CompTIA, however, expressed skepticism in our comments about the extent to which antitrust law can be used to ensure net neutrality, and the Order all but states that we were correct in our assessment.
Once the FCC’s order passes, we will almost certainly see a flurry of court challenges immediately, and those challenges could ultimately succeed. The Commission has a high burden to prove that such a dramatic shift in regulations just two and a half years after the Open Internet Order is not arbitrary and capricious under the Administrative Procedure Act. Additionally, the decision to preempt states from passing laws to replace the net neutrality rules could be beyond the scope of the Commission’s powers. We likely won’t see a resolution in the courts until some time in 2019. In the meantime, CompTIA will likely turn its attention to Congress, who alone can resolve the uncertainty surrounding the future of net neutrality.
Matthew Starr, Director, Public Advocacy, Broadband and Telecom / Privacy