Despite dire warnings from some corners of the media, the Federal Communications Commission’s planned action isn’t the end of net neutrality, and in fact it may foster growth on the internet.
Before we get started, let’s all take a deep breath. That’s it. Breathe all the way in, then hold it for a few seconds, then exhale slowly. There. Feel better?
Good. Now that your heart rate has returned to normal, let’s set the record straight. The FCC’s plans regarding net neutrality, set to be revealed in detail on Nov. 22, aren’t going to end net neutrality. What the FCC is planning to do is reverse the decision that placed the internet under Title II of the Communications Act.
Obama Changed Internet Governance in 2014
A little background is required, since the Title II change happened three years ago. In 2014, then-President Barack Obama directed the FCC to change course and put internet governance under Title II. This is the same part of the Communications Act that regulates landline voice telephone service. Title II was conceived in the day when AT&T was the only carrier of significance in the United States. In order to keep pricing and practices under control, rules were made controlling how AT&T, a monopoly at the time, interacted with people.
Tom Wheeler, who was the FCC chairman at the time, did what the president wanted and drafted rules placing the internet under that regulatory framework. Prior to this, the FCC had been working with Congress to draft legislation that would have created a comprehensive, and fair, set of net neutrality rules. That bipartisan legislation was already working its way through committee hearings and had been expected to be adopted into law.
The legislation was important because a series of court decisions had found that the FCC had exceeded its authority in mandating net neutrality in the absence of enabling legislation. The shift to Title II derailed that legislation but didn’t end the court challenges.
The change to Title II redefined the internet so that it would fit the requirements of Title II, but only through a byzantine web of forbearances and assumptions did it actually enable net neutrality. Moreover, all of the various theoretical actions that net neutrality advocates feared were still possible under Title II, as long as they were disclosed in advance.
Net Neutrality Won't Be Impacted
What’s going to happen if the order is adopted is that the net neutrality picture will go back to where it was three years ago. Net neutrality existed in those days as well. The difference is that there weren’t a bunch of regulations controlling it.
What’s going to happen on Nov. 22 is this: The FCC chairman will release a proposed order to revert internet governance to the status that was in place prior to the 2014 reclassification. However, there’s an important exception: The FCC will keep the transparency rule, which requires providers to say exactly what they promise to do as well as what they promise not to do. Then it holds them to those promises through a variety of enforcement methods.
When the proposed order is released, everyone—from the other commissioners to the internet industry to the general public—will have a chance to see the order before it’s enacted. This will allow the other commissioners a chance to negotiate changes, and it will allow public input. While the official comment period will have already passed at this point, the commission will still be aware if there are major sticking points.
This is all in marked contrast to the previous FCC that worked in secret and made decisions that revealed only weeks or months later. Then, it was common for commissioners of the majority party to agree in secret prior to FCC meetings, never even disclosing proposed items to minority commissioners. At least now, whether you agree or not, you’ll know what’s being considered.
It's a Matter of Which Agency Will Oversee Business on the Net
Assuming the order that is approved by the commissioners is reasonably close to what FCC Chairman Ajit Pai is saying in his statement released on Nov. 21, the biggest changes that will come with the end of internet governance under Title II will be the agency that enforces how companies do business on the internet.
What will happen then is that enforcement will revert to the Federal Trade Commission, which already has responsibility to enforce such practices elsewhere. Perhaps more importantly, the FTC has broad enforcement capabilities, and it’s a function the agency handles daily. When former Chairman Wheeler oversaw the change to Title II, he removed the role of the FTC in this enforcement. The proposed changes would put it back.
On a more practical basis, the Title II action by the FCC was headed for some serious legal challenges. Some parts of it had already been challenged in court, and it was appearing likely that the FCC would lose. The reclassification of the internet under Title II was on dubious legal grounds from the day it happened—more accurately, from the day anyone found out about it many weeks later.
Meanwhile, it’s worth noting that even if nothing changes, which might be the case, at least the FCC isn’t being run in secret anymore.