FCC Rejects Net Neutrality Delay, but Court-Ordered Stay Possible

By Wayne Rash  |  Posted 2015-05-11 Print this article Print
No Neutrality Delay

The problem doesn't appear to be that the carriers, ISPs and associations object to net neutrality per se. The real problem and the one that may already be causing concern among Internet companies is the fact that Title II wasn't really intended to apply to the Internet. Title II was written to regulate landline telephone companies as a way to make sure that they didn't use their monopoly power (which they still have in most places) to discriminate unfairly.

Because Title II was written for a heavily regulated communications business environment, it also included regulations that are totally inappropriate for Internet providers, including things like rate setting. In its Open Internet order, the FCC said it would forbear from imposing those regulations, thus relieving the Internet from such limitations.

But it's this promise of forbearance that poses a risk to ISPs. Just as the FCC can decide to forbear from imposing such regulations, the agency can also change its mind. A different FCC with different members can change things if they so desire.

While the federal Administrative Procedures Act includes rules that the FCC and other agencies are supposed to follow when they make such changes, those same agencies have been known to play fast and loose with the rules when it suits them.

While the FCC would certainly issue formal notices of proposed rulemaking and it would certainly request comments, the agency has in the past adopted rules that were far different from what was originally proposed and commented on when it suited its purposes, including the current net neutrality rules.

While it's true that FCC Chairman Tom Wheeler has repeatedly said that the Open Internet order won't be changed, the fact is that he doesn't know this to be true. The reason is simple—once the FCC chairman steps down, so does control over the FCC agenda. Wheeler, as is the case with all other chairmen before him, can't predict nor can he control the future.

Of course, what may happen is that net neutrality legislation currently making its way through Congress will eventually be voted out of committee and voted on by the full House of Representatives and Senate. If the president signs it, the FCC can't change regulations established by legislation. While President Barack Obama probably won't sign a bill that changes things too much, he's only going to be president for two more years.

As you probably know by now, two years is no time at all in Washington. When the next administration takes office, if some kind of net neutrality legislation isn't already in place, there's absolutely no way to assure the ISPs that things won't change, and given the mood in Washington, there's every reason to believe that things will change—unpredictably.



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