There are three things to know about the current claims regarding the Federal Communications Commission's decision on May 18 to begin the process of moving internet regulation back to Title I, reversing the reclassification under Title II enacted 2015.
The three things are these: Title II does not ensure net neutrality, despite the claims from all sides that it does. Title I does not eliminate network neutrality, despite those anguished claims to the contrary. And this is one of those times when the process really matters.
The process that matters in this situation began in 2015, when the White House demanded that the FCC reclassify the internet and Internet Service Providers as falling under Title II of the Communications Act. Title II is the same part of the Act that regulates telephone companies as common carriers. The rationale for doing this was to maintain net neutrality regulations.
The White House demanded this action because the federal courts had found that the FCC lacked the authority to enforce net neutrality under Title I. The fact that there was a bipartisan net neutrality bill on the road to passage in Congress was ignored by the administration. By agreeing to the While House pressure, the FCC violated its own independence.
But that wasn’t the only instance when former FCC chairman Tom Wheeler violated the rule-making process. The agency had held hearings and comments for a Notice of Proposed Rulemaking that would work with the net neutrality legislation that was being finalized in Congress. But the commission changed course radically with its reclassification. Instead of holding new hearings and receiving comments as the law requires, it simply enacted the change.
What was worse is that Wheeler kept the 300-plus page reclassification order secret before the FCC action and didn’t reveal its contents until weeks later, another violation of the law, which like the others included the Administrative Procedures Act. The new order provided for net neutrality through a set of forbearances, which the commissioners could change at their whim.
The new Chairman, Ajit Pai, announced that he was going to see about undoing the FCC's previous decision. But unlike the Wheeler FCC, Pai made the planned action public and openly invited public comments before and after the vote.
So far, the comments seem to slightly favor net neutrality, although it’s hard to tell because the FCC’s comments were flooded by spammers who sent millions of identical anti-neutrality messages using people’s names acquired from hacked accounts.
To be sure how the trend is going, the FCC staff will have to identify those bogus comments and remove them. Until that happens, we don’t actually know for sure how the pro versus con count is going.