The FCC just took the next step in reversing Obama's 'open internet' rules

Ajit PaiChip Somodevilla/Getty ImagesFederal Communications Commission chairman Ajit Pai.

The Federal Communication Commission voted Thursday to begin the process of undoing the net-neutrality rules it put in place during the Obama administration.

The vote fell 2-1 along party lines, with Republican Chairman Ajit Pai and Commissioner Michael O’Rielly voting in favour of Pai’s proposal to reverse the rules. Democrat Commissioner Mignon Clyburn voted against.

To be clear, this does not mean the existing net-neutrality rules are dead. Instead, the FCC will now seek further public comment before finalising an order that would undo the rules in earnest. That order will require another vote, most likely in the second half of the year.

Even if the commission passes that order, that wouldn’t necessarily end the matter. The new rules will almost certainly be challenged in court by proponents of the Obama-era rules.

That could be an extended process. It took about 10 months for the current net-neutrality rules to go from proposal to official policy, then another 15 months to be upheld in court.

But the vote on Thursday has fired the starting gun for the process.

The context

As a reminder, the current net-neutrality rules classify internet service providers like Comcast and Verizon as utility-like “common carriers” under Title II of the Communications Act. That classification gave the FCC broad authority to dictate what ISPs could do within their networks.

FccFCCLeft to right: Democrat commissioner Mignon Clyburn, Pai, Republican commissioner Michael O’Rielly.

Most notably, the FCC used that Title II authority to preemptively generally ban ISPs from blocking, slowing the speeds of, or prioritising certain traffic on their network. AT&T, for instance, cannot slow down Google’s YouTube TV service so that it’s less appealing than its own DirecTV Now service. Nor can it let Google pay a fee for faster speeds, something a smaller startup would be less capable of doing.

Pai’s proposal aims to strip that Title II classification for ISPs, and reverse them back to being Title I “information service providers.” That is what they were considered prior to the current rules. Pai says the expanded FCC authority — including a “general conduct” rule that lets the FCC strike down future abuses that aren’t explicitly covered by the official rules — has depressed ISPs’ willingness to invest in their networks.

Pai’s proposal expresses support for the “no blocking” rule, but seeks comment on whether any of the core net neutrality rules are necessary. Republicans and various ISPs feel it’s best to punish any abuses after the fact, instead of preemptively banning the possibility of misconduct with what they see as heavy-handed regulation.

Net neutrality protestersChip Somodevilla/Getty ImagesProponents of net neutrality protest against Federal Communication Commission Chairman Ajit Pai outside the American Enterprise Institute before his arrival May 5, 2017 in Washington, DC.

Proponents of the current rules — namely Democrats, consumer advocacy groups, and internet-based companies both bigand small — say Title II authority is necessary to actually enforce net neutrality, and argue that network investment has not been harmed by the Obama-era rules. Weakening those rules would open the door for ISPs to play favourites, and thus stifle competition, they say.

Clyburn, for one, decried Pai’s proposal as a “hollow theory of trickle-down economics” at the FCC’s open meeting on Thursday.

Major ISPs like Comcast, Verizon, and AT&T have said they will not block or throttle content should the rules be reversed. The FCC twice tried to impose net-neutrality rules using Title I authority before the current rules were enacted in 2015, and was defeated in court by ISP lawsuits on both occasions.

Pai has said he would welcome Congressional action that would turn net-neutrality principles into law, though it’s not clear what such a bill would look like with the ongoing gridlock in Washington.

In any case, the debate is a heated one. Various Democrats in Congress have pledged to protest Pai’s intentions, and some consumer advocacy groups have already disrupted FCC meetings in support of the Obama-era rules.

More than 2.1 million public comments have already been filed since Pai issued his notice of proposed rulemaking — many spurred by comedian John Oliver’s call to preserve the rules — though hundreds of thousands of those comments appear to have been generated by bots, bringing their authenticity into question.

Expect things to intensify on both the internet and Capitol Hill from here.

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