What Happens Now That the FCC Repealed Net Neutrality

With the vote passed, the court battles begin

After a meeting voting to end net neutrality, Federal Communications Commission (FCC) Chairman Ajit Pai smiles while listening to a question from a reporter, Thursday, Dec. 14, 2017, in Washington.
Photo: Jacquelyn Martin/AP
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Today the commissioners of the Federal Communications Commission—chaired by Ajit Pai—voted to repeal an earlier 2015 order establishing net neutrality regulations in the United States. The vote’s result, a 3-2 vote in favor of repealing, isn’t particularly surprising. Even before the details of the proposal were revealed the day before Thanksgiving, the assumption has been that it was likely to pass.

Almost immediately after the draft was released, opposition emerged, both from grassroots movements and industry groups. Both constituencies have argued the new ruling would stifle commerce and entrepreneurship online. Already, lawsuits challenging the results of the FCC vote have been announced.

The vote went through, despite multiple attempts to delay it. Over the past week, both Republican and Democratic senators called for the FCC to halt the proceedings. The attorneys general of 18 states argued the vote should not be held until evidence that the FCC’s public comments process was jeopardized by submissions from bots and stolen identities could be investigated. Even during the FCC’s meeting, Pai’s statement was interrupted for several minutes when security cleared the room. But ultimately the vote still happened.

With the proposal passed and lawsuits already pending, what happens now?

Not much, initially. “The vote is just the beginning of a long discussion on the policy of how the FCC manages the Internet,” said Evan Franke, an administrative law professor at George Washington University.

The new ruling, like any ruling from a government agency or a piece of legislation from Congress, will be reprinted in the Federal Register. The register publishes day-to-day updates on the latest rules, regulations, and hearings for the federal government.

There’s often a delay until the new ruling will take effect. For example, the FCC’s vote to pass the Open Internet Order supporting net neutrality principles in 2015 was on February 26, but the ruling was not published in the Federal Register until April 13. Even then, as the entry in the register notes, the ruling did not take effect until June 12.

Franke said the typical delay for a new ruling to take effect after being published is 30 days. So depending on how long it takes for the ruling to be published in the Federal Register, it could ultimately take two or three months before the ruling takes effect.

In the meantime, the Washington, D.C. circuit of the U.S. Court of Appeals will become the battleground for the issue. Just two minutes after the FCC passed the New York Attorney General Eric Schneiderman announced via Twitter that he would be suing the FCC over the decision as the head of a multi-state lawsuit. The advocacy group Free Press—which focuses on freedom of information issues—announced their intention to sue the FCC. Another advocacy group, the Internet Association–with Amazon, Google, Netflix, Facebook, and many other internet companies—is also exploring legal options.

The courts won’t be able to overturn the Restoring Internet Freedom Order itself—even the Supreme Court recognizes it is within the FCC’s authority to decide how to regulate the Internet, as they affirmed in a 2005 case. But the courts do have the authority to issue an injunction temporarily halting the order from taking effect, at least until the legal challenges are straightened out. Because there’s no dispute about whether or not the FCC has the authority to decide how to regulate the Internet in the United States, lawsuits are likely to focus on the process that led up to the vote.

The FCC received more than 22 million comments in the time leading to the release of the agency’s proposal draft.  A significant chunk of those comments, however, have turned out to be fake, submitted under false names or from abroad.

If the lawsuits are successful—something Franke sees as likely—the temporary injunction on the order taking effect will allow the D.C. Court of Appeals to rule on whether the order needs to be revisited by the FCC. While the court cannot decide what policy the FCC should adopt, it can rule that there were mistakes in the order’s preparation—mistakes like failing to address the millions of comments and their legitimacy.

At the same time, there’s another, bigger legal battle currently in stasis that could reanimate. Even though the Open Internet Order took effect two years ago, the lawsuits following it are still unresolved. But those unresolved lawsuits have the potential to limit the FCC’s authority to regulate the Internet in the future.

That time around, several lawsuits—mostly filed by Internet Service Provider industry groups—argued that the FCC overstepped its authority in 2015 by passing the Open Internet Order. The D.C. Court of Appeals ruled against the industry groups, so they’re currently in the process of appealing to the Supreme Court.

It may seem odd that the ISP industry groups, led by the United States Telecom Association, would continue pursuing lawsuits they filed against an FCC regulation that is essentially no longer in effect.

But there’s reason for the ISP industry groups to still push ahead. “They don’t like the ruling of the D.C. circuit that the FCC has this authority,” said Franke. By continuing their appeal to the Supreme Court, the ISP industry groups can still find a way to curtail the FCC’s authority to set regulation in the future through a rarely-used ruling.

In 1950, the United States sued Munsingwear, a Minnesota-based underwear manufacturer, over allegations that the company was violating regulations preventing price-fixing. The case worked its way through the court system before being heard by the Supreme Court. During this time, the regulations in question were removed by an executive order, rendering the whole case moot. Essentially, the Supreme Court said that all rulings made up to that point were invalidated because of the change in circumstances.

Franke sees a similar opportunity for the ISP industry groups currently appealing to the Supreme Court. The Supreme Court could easily decide the Restoring Internet Freedom Order makes their lawsuit moot. In the process, lower court rulings would be invalidated, including the D.C. Court of Appeals’s ruling that the FCC has the authority to broadly decide Internet regulation.

But a Supreme Court ruling that invalidates the D.C. Court of Appeals’ decision gives the ISP industry groups leverage to argue that the FCC doesn’t have the authority to vote on such extensive regulation policy. It would create one more hurdle for future FCC commissioners looking to adjust or repeal the Restoring Internet Freedom Order.

No matter what, the current situation is far from resolved. “We can expect this to drag on and not have a direct impact for some time, if the court decides on an injunction,” says Franke, adding, “My money is on the courts issuing the injunction.” While it will be almost impossible for lawsuits to successfully argue that there is illegal content in the FCC’s latest order, a much stronger case can be made that the FCC erred in putting it together by ignoring immense public opposition.

At best, Franke says, the groups filing lawsuits can hope for a do-over, essentially forcing the FCC back to the drawing board to craft a new proposal that takes the public comments submitted into heavier consideration. But the only way to more permanently settle this debate is for Congress to issue clearer legislation defining the Internet. “A carefully drawn statute could substantially limit this swing on how heavily or lightly the Internet is governed,” says Franke.

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