The internet is operating under a new regulatory regime in the U.S., but the battle over net neutrality is expected to continue to play out in cities, states and courts across the country.
The Federal Communications Commission's Restoring Internet Freedom order, adopted in a high-profile 3-2 party-line vote at the end of 2017, went into effect June 11. The FCC's Republican majority stressed that the new regulatory framework would pave the way for "better, faster, cheaper internet access," while ensuring "strong consumer protections" and "common-sense regulations that will promote investment and broadband deployment." But critics of the repeal, including the FCC's lone standing Democratic commissioner, said the fight over internet regulations is far from finished.
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Under the new order, broadband is once again classified as a Title I service under the Communications Act, giving the FCC less authority over internet service providers. The order also eliminated the agency's federal net neutrality rules, which prohibited network operators from blocking or throttling legal internet traffic or prioritizing certain traffic in exchange for payment. Broadband providers are subject to a transparency rule requiring them to publicly disclose if and when traffic is blocked, throttled or prioritized.
Additionally, the FCC signed a memorandum of understanding with the U.S. Federal Trade Commission under which the FTC will take action against ISPs that engage in anticompetitive acts while the FCC will ensure adherence to its transparency rule.
Jessica Rosenworcel, the FCC's lone Democratic commissioner, called the new regime "bad news for all of us who rely on an open internet." She noted under the new framework, internet service providers can block websites, throttle services and censor online content.
Speaking at the U.S. Conference of Mayors, Rosenworcel said she will continue to fight for change. "We are seeing states, cities, and towns with new laws, initiatives and executive orders trying to make right what the FCC got wrong. We are seeing litigation. We are seeing legislation. There are efforts everywhere to overturn the mess the agency made. This one's not over," she said.
A handful of state governors have issued executive orders on the issue, such as one in Montana that requires internet service providers with state contracts to abide by net neutrality rules. In addition, more than two dozen state legislatures have introduced legislation, such as a California bill that would prohibit broadband providers in the state from blocking or throttling internet traffic or prioritizing certain traffic in exchange for payment.
But many of these measures are likely to face legal challenges. The FCC, in its Restoring Internet Freedom order, sought to pre-empt states by prohibiting "any state or local measures that would effectively impose rules or requirements that we have repealed."
The Internet Association — a trade group whose members include Alphabet Inc., Facebook Inc. and Twitter Inc., among others — said in a June 11 statement that it would continue to fight for the restoration of net neutrality protections "through the courts, legislation, and administrative action."
In Congress, Senate Democrats, with the help of a few key Republicans, voted in May to pass a measure that would restore the FCC's net neutrality rules through the Congressional Review Act. The CRA, used by Republicans in 2017 to overturn various Obama-era regulations, allows lawmakers 60 legislative days to disapprove of a newly issued regulation.
On June 26, the public interest group Public Knowledge is leading a net neutrality advocacy day on Capitol Hill to win support for the CRA measure in the U.S. House of Representatives. But with Republicans holding a much larger majority in the House, the resolution is not expected to succeed in that chamber, nor is it likely to be supported in the White House.
Public Knowledge, along with a number of others, has already filed a legal challenge against the FCC's 2017 order. "We have a long, successful history of standing up for net neutrality rules and enforcement in court," the interest group said.
The courts, though, have their own long history of deferring to the FCC as the expert agency on how the internet should be regulated. Under the Chevron doctrine and its later expansion under the Auer doctrine — two cornerstones of administrative law — courts are supposed to defer to agencies' expertise where statutes are vague. Legal experts have said this precedent will complicate any court challenges to the FCC's new order.


