After Net Neutrality: What Happened, and What’s Next
Let’s cut past the hype, the propaganda, and the lobbying, and take a look at what happened at the FCC on Thursday, and what happens next for the Internet.
After a meeting voting to end net neutrality, Federal Communications Commission (FCC) Chairman Ajit Pai smiles while listening to a question from a reporter, Thursday, Dec. 14, 2017, in Washington. (AP Photo/Jacquelyn Martin)
First off, in the FCC’s own words, here’s what their vote Thursday actually does:
Restores the classification of broadband Internet access service as an “information service” under Title I of the Communications Act – the classification affirmed by the Supreme Court in the 2005 Brand X case.
This is what Barack Obama’s Open Internet Order (aka Net Neutrality) was really all about.
By regulatory fiat, he repealed the regulatory light touch demanded by the Telecommunications Act 1996, by shifting ISPs away from ‘information services’ (the old way of treating them) and under the control of Title II, common carriers (the heavily regulated classification). This was a nuclear option known as Title II Reclassification. In 1996 they passed bipartisan legislation to remove ISPs from the burden of having every aspect of their business micromanaged by heavy regulation. Obama’s FCC just up and overruled that.
Regulators shouldn’t overrule legislation. That is the single most important reason that Thursday’s vote was good, in addition to the fact that it was the regulatory light touch that let the commercial Internet grow and thrive, creating countless jobs and wealth for all Americans in the first place.
In other words,
Restores the classification of broadband Internet access service as an “information service” under Title I of the Communications Act—the classification affirmed by the Supreme Court in the 2005 Brand X case.
Again, we’re simply rolling things back to where they were before Obama intervened. The mobile market has amazing amounts of competition, because it’s regulated even more lightly than wired Internet is.
We should get out of the way and let competition continue to improve service while lowering costs, as it did before Obama.
Continuing with what the FCC’s decision yesterday actually does:
Restores broadband consumer protection authority to the Federal Trade Commission (FTC), enabling it to apply its extensive expertise to provide uniform online protections against unfair, deceptive, and anti-competitive practices.
This is a big decision nobody’s talking about. What the FCC is saying here is that we don’t need an entirely new regulatory mandate to protect customers from being cheated.
FTC has an entire regulatory framework created, tested, and proven effective at stopping cheats. Moving oversight of ISP consumer business practices to the FTC ensures that ISPs and customers alike face consistent, familiar rules that we can rely upon to make intelligent decisions.
Requires that ISPs disclose information about their practices to consumers, entrepreneurs, and the Commission, including any blocking, throttling, paid prioritization, or affiliated prioritization.
That’s right. FCC is requiring ISPs to be more open about network activity than they even were before. We’re going transparent, folks. It’s going to be illegal for them to do things in the cover of night, without telling you, in the name of network management. That’s a big deal and again, will give us all the information we need to make intelligent decisions.
First off, some folks are going to sue. Some states are, too. Lots of lawsuits are going to be filed to try to use the courts effectively to overturn the 2016 Presidential Election, which allowed Republicans to appoint a 3-2 majority on the Commission.
However, nothing is going to come of those suits. FCC actually has a history of losing in court in trying to implement so-called Net Neutrality regulations. The first two times they tried, they failed. That’s why they did that Title II Reclassification nuclear option to begin with.
It was only with that drastic step that they were able to get the courts to grant them the Chevron Deference, which is the courts’ way of saying regulators are allowed to interpret in any reasonable way they want, the laws that empower them. And well, the FCC won in court to implement the Open Internet Order to begin with. It’s certainly going to win to repeal it.
What’s also going to happen is a push for legislation. The far left is going to try to bring over more gullible Republicans to try to re-implement in legislation, what the Trump administration just reversed in regulation. This would be a bad idea, because we want the Internet to thrive, new ideas to bloom, and innovation to make our lives better. None of that happens with government bureaucrats in the way.
There is, however, one great law the Congress could pass. Paul Ryan, Mitch McConnell, and Donald Trump could ensure a bill is passed preventing the FCC from re-doing the Open Internet Order as soon as the Democrats regain control of the FCC. Right now, the courts will let the FCC interpret the law allowing the Title II nuclear option. The Congress should expressly prohibit that.
It is possible that such a legislative process would get messy, as rent seekers lobby the bill into a monster that picks winners and losers. But all we need is a narrow bill, similar to Congressional Review Act bills, that simply prohibit one specific act. It remains to be seen if the Republicans will even try.
Further, the Republicans could try to defang regulators more broadly, by making a legislative move to overturn the Chevron Deference itself. Instead of letting regulators interpret their own laws as they see fit, give them more narrow constraints to prohibit big power grabs. Imagine a more modest, predictable government. Investors would love that, and we’d all love the economic benefits. But this seems even less likely from this Congress, sad to say.