The Federal Communications Commission released its anticipated Open Internet Order on March 12, and as indicated during the commission’s vote in late February, the order was very long—well over 300 pages—and filled with defensive language.
In fact, the actual content of the order itself was quite brief. Nearly all of those hundreds of pages consisted of references to the various sources of legal authority, which the FCC says allows it to impose net neutrality on Internet service providers.
However, the entire document is so lengthy that the FCC also published a five-page summary to explain it, a separate fact sheet that addresses opponents’ claims that the commission believes are wrong, and a blog entry explaining how the FCC went about the decision-making process that was written by the FCC’s general counsel.
There’s even more explanation on the FCC Website, but, by the time you finish reading everything, the first legal challenges will already have been filed.
And this order, if it’s nothing else, is all about legal challenges. When FCC Chairman Tom Wheeler announced the order, he specifically predicted challenges. Many opponents have predicted legal challenges. The vast majority of the content of the order itself is intended as a bulwark against challenges.
The truth is, unfortunately, that the more material you provide the opposition in a situation like this, the more there is to challenge. It’s a sure bet that somewhere deep within those hundreds of pages of defensive language there will be something that a good communications lawyer can object to in federal court.
In addition, this new Open Internet rule is to some extent in opposition to net neutrality legislation that’s currently working its way through Congress. The first hearings have already been held and more are scheduled later this spring.
The legislation is bipartisan and has broad support. If it passes the House and Senate by large margins, which it may, it’s even possible there is enough support to overcome a White House veto. That legislation would preempt any rule that the FCC might make.
That legislation is already gaining support in response to the FCC’s action. The Telecommunications Industry Association, the association representing network operators and equipment suppliers went on record almost immediately after the order was announced opposing it and backing the legislation instead.
“The FCC order confirms that Title II is a Trojan horse that will open the door to heavy government control of the Internet and create marketplace uncertainty,” said TIA CEO Scott Belcher in a prepared statement.
“With Title II in place, there is little to stop future commissioners from instituting government price controls or other market-distorting regulations. The FCC’s promise of a light-touch approach is just that—a promise. There is too much at stake to allow the future of the Internet to rest upon a simple promise.”
FCC Takes Defensive Legal Stance in 300-Page Open Internet Order
“Regardless of how far the FCC pushes its future authority, the immediate uncertainty created by this plan will produce a slowdown in capital investment,” Belcher added. “Consumers and small businesses, who have benefited enormously from the existing regulatory landscape, will bear the burden of a less robust network. TIA is committed to working with Congress to achieve a bipartisan alternative that clarifies the FCC’s legal authority and assures a light-touch approach to net neutrality.”
Belcher’s criticism of the FCC’s order is likely the weak point in the rules as they are currently written. The problem is that when the FCC decides to practice forbearance, meaning that the agency won’t enforce certain provisions of the law, such as rate regulation, there’s nothing to stop the FCC in the future from changing its mind.
During a media briefing after the commission released the order on March 12, which unfortunately was on background, FCC officials repeatedly dodged questions about whether its promise of forbearance could be changed or eliminated in the future.
In other words, the FCC’s promise as to how it will administer the Internet is just a promise. There is no legal basis to enforce a promise of forbearance. A senior official for the FCC said that the agency is trying to make it clear that the Title II approach is the best way to approach net neutrality and that as time goes on it will be clear to future members of the FCC that they shouldn’t change things.
However, despite what the FCC is calling clear direction, the order as its currently written includes a host of things that a senior official said won’t be affected. Some of those are what the FCC calls special services, including things like services for e-readers and heart rate monitors.
However those specialized services could also allow parallel network delivery of things like movies or gaming. In addition, the same official said that existing agreements that are already in place will not need to be change. Whether that includes existing paid prioritization agreements wasn’t clear.
Also not clear is whether the order would regulate activities by some carriers that include throttling bandwidth to customers who have unlimited data plans and use a lot of data. Answers by FCC officials said that the rules wouldn’t interfere with network management, but also said that business decisions that allow throttling wouldn’t be permitted.
So for better or worse, the FCC’s net neutrality order is in place, and will take effect 60 days after it’s published in the Federal Register, except for those provisions that are delayed by legal challenges, FCC forbearance or other regulatory issues, those same unnamed officials said.
The rules that the FCC had said are designed to inject certainty into the regulation of the Internet seem to have resulted in far more uncertainty than had existed before.