Net Neutrality’s Turbulent FCC Path

This is a guest post by John Howes, Policy Counsel for the Computer & Communications Industry Association (CCIA).

“Net Neutrality” has been a hot issue over the past few years.  The idea is that the ISPs you pay to access the Internet should not be able to slow down or block you from accessing the websites you want to see.  This is incredibly important because Internet access is crucial to our economy and touches almost every aspect of our daily lives.  An ISP could slow traffic or block consumers’ ability to get to certain websites—and some have in the past.  The problem is ensuring that everyone can have equal access to an open Internet going forward.

The Federal Communications Commission (FCC) is the government agency tasked with overseeing communications networks.  Ever since the commercial Internet emerged in the ‘90s, the FCC has struggled with how it should characterize the Internet and whether it needed to write rules to ensure that consumers could access whatever they wanted on the Internet.  Two years ago, then-Chairman of the FCC, Tom Wheeler, passed new “Open Internet” rules banning blocking, throttling, and paid prioritization of Internet traffic.  To do this and ensure that the rules would be enforced, Wheeler and two other FCC Commissioners (so three out of the five commissioners) voted to change the way broadband Internet service is classified in the law to ensure ISPs would act fairly.  CCIA has long supported open networks and open competition, and CCIA strongly supported these rules.  Last year, the rules were challenged in Federal court, and that court upheld the FCC’s actions.

Still, the rules, and open Internet policies in general, have been controversial.  After the election, Tom Wheeler left the FCC, and the President appointed Republican Commissioner Ajit Pai to take over as FCC Chairman.  Pai’s views on the open Internet are very different from Wheeler’s.  On April 27th, FCC Chairman Ajit Pai released a draft Notice of Proposed Rulemaking (NPRM) seeking comment on how the agency can roll back Wheeler’s 2015 rules and change the way broadband is classified in the law.  Under Pai’s plan, the FCC would have very little authority to ensure that ISPs are not blocking, throttling, or engaging in paid prioritization of Internet traffic because the FCC would no longer have the same strong, legal basis for the Open Internet rules.  Indeed, just last year an appeals court found that Wheeler’s rules had the strongest support in the law.

On May 18th, Pai and the other Republican Commissioner, Mike O’Rielly, who has also long been against net neutrality rules, voted to pass the NPRM. The other Commissioner — there are now only three Commissioners — Democrat Mignon Clyburn, voted against the NPRM and delivered a stinging dissenting opinion. The votes opens up a new proceeding, from which the FCC could enact new rules that would essentially reverse what Wheeler passed and the court upheld.  The proceeding allows opportunity for interested parties to file comments on the new rules by July 17th and reply comments by August 16th.  Unless the membership of the Commission changes or Pai and O’Rielly suddenly change their minds, final rules based on Pai’s draft NPRM will go into effect this fall.

With Pai’s new rules, the FCC would no longer have the authority under law to prevent ISPs from blocking, throttling, or setting up prepaid fast lanes for Internet traffic.  An ISP that also owns a platform for watching video could make its own video faster and have better picture quality than one of its competitors.  The ISP could block your access to other websites if it decided it no longer liked them.  Because there would be no rules in place making this conduct illegal, the FCC wouldn’t be able to hold these companies accountable for restricting Internet freedom.  We urge you to take action.  After Thursday, we urge you to comment on the proposal.  Call your Congressman and Senators; tell them why your access to the Internet should not be curtailed by the whims of a big ISP.

John Howes is a Policy Counsel at the Computer & Communications Industry Association. John joined CCIA as a Legal Fellow in January 2015, and focuses on telecommunications, Internet governance, and media policy. John received his J.D. in 2015 from American University Washington College of Law (WCL), and is a member of the Maryland state bar and the Federal Communications Bar Association.