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FCC's repeal of net neutrality rules published; Congressional battle reignites

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FCC's repeal of net neutrality rules published; Congressional battle reignites

With the Federal Communications Commission's order repealing the U.S. agency's net neutrality rules published in the Federal Register on Feb. 22, Democratic lawmakers are ready to start the legislative process to overturn it. The publication is one of the last required steps before the repeal of rules becomes effective.

According to the published order, the new regulatory regime will generally become effective April 23. Specifically, the order reclassifies broadband as a Title I service under the Communications Act, versus the Title II classification that was adopted in 2015 under the prior Democratic administration.

"With the publication of these rules, the FCC has taken another step towards stripping away the essential protections that make the internet an open platform for commerce, communication, expression, and innovation," Rep. Mike Doyle, D-Pa., said in a Feb. 22 statement. "Now that the order to eliminate net neutrality has been published in the Federal Register, the period of time in which legislation to overturn the order can be introduced has begun, and we can begin the legislative process to overrule the FCC and preserve net neutrality."

Doyle, the ranking member of the House Communications and Technology Subcommittee, has introduced a bill in the House calling for a resolution of disapproval under the Congressional Review Act, or CRA, of the FCC's new order. The law, used by Republicans in 2017 to overturn various Obama-era regulations, allows lawmakers 60 legislative days to disapprove of a newly issued regulation. The CRA also contains a provision that prohibits an agency from issuing a new rule in "substantially the same form" as a regulation disapproved by Congress. In other words, if the CRA was used to overturn the FCC's new order, not only would the previous net neutrality rules be restored, but in addition, the FCC would be prohibited from ever reclassifying broadband as a Title I service in the future.

Sen. Ed Markey, D-Mass., has introduced a similar bill in the Senate and previously said he had 50 votes in support of the measure. The law requires a simple majority vote in Congress plus presidential approval. As such, Senate Democrats need only 51 votes, as opposed to the usual 60, to pass the measure. But with Republicans holding a much larger majority in the U.S. House of Representatives, the resolution is unlikely to succeed in that chamber, nor is it likely to be supported in the White House.

More than two dozen states have also moved to implement their own net neutrality protections. But as part of the FCC's order, the commission included language pre-empting states from passing their own measures.

Beyond Congress and state governments, various legal challenges are also expected now that the order has been published in the Federal Register. The media advocacy group Free Press said Feb. 22 that it will soon refile a petition for review of the FCC order, initiating the organization's legal case appealing the agency's decision. Entities wishing to challenge the FCC decision have 10 days to file with the U.S. Court of Appeals to take part in the court-selection process.

"Momentum keeps growing in favor of restoring Title II protections," Free Press Policy Director Matt Wood said in a statement, adding, "Lawmakers have signed up by the hundreds to overturn the FCC's decision. And the courts will have their say as they begin to assess the legal and factual errors underlying the FCC's wrongheaded repeal."

The distinction between a Title I and Title II classification impacts how much authority the FCC has to regulate broadband services. The agency has much broader oversight powers for Title II services — including the ability to impose tariffs, set rate regulations and impose net neutrality rules — than Title I services.

As part of the reclassification, the FCC also eliminated its net neutrality rules, which prohibited network operators from blocking or throttling legal internet traffic or prioritizing certain traffic in exchange for payment. Instead, the FCC will rely on a transparency rule, which requires broadband service providers to publicly disclose if and when traffic is blocked, throttled or prioritized. Additionally, the FCC is coordinating with the Federal Trade Commission to divide responsibilities for various online consumer protection efforts.

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