The FCC’s Open Internet Order – Which Freedom?

By Fabio Lanari (Modified by Rock1997 via the Creative Commons License)

The fight over the Open Internet (better known as net neutrality) continued Thursday with the Federal Communications Commission voting to reverse the 2015 Title II Order, which reclassified broadband Internet access as a "telecommunications service." This decision means that the Internet will return to its pre-2015 Title I "information service" classification (For a history of how we got to this point, read our past CommLaw posts here). Furthermore, the Commission's Order removes much of the FCC's oversight over the Internet, and reinstates shared jurisdiction with the Federal Trade Commission.

However, it is obvious for anyone that has been following this fight that this battle is far from over.

While Commissioners on both sides of the aisle said they were in favor of Internet freedom, they each had different definitions of what that means. In particular, the Republican and Democratic Commissioners expressed fundamental differences in defining the nature of that freedom and the Commission's role in protecting such freedom.

For Chairman Pai, Commissioner O'Rielly, and Commissioner Carr, Internet freedom means an open, market-based approach to the Internet marketplace not inhibited by so-called burdensome regulations that have, as Chairman Pai put it, ""taken us in the opposite direction from consumer preferences."

These three commissioners believe that the previous Open Internet regulations have hindered investment in broadband infrastructure growth. And thus, Commissioners Pai, O'Rielly, and Carr in their public comments all argued that rolling backing net neutrality rules was a pro for consumers and for businesses.

Chairman Pai said that this change will remove regulations that he says constitute "heavy-handed micromanagement" and that the 2015 decision subjected, "the Internet to utility-style regulation designed in the 1930 to govern Ma Bell." Commissioner Carr heralded the vote saying, "This is a great day for consumers, innovation, and for freedom."

In addressing the controversy over net neutrality, Carr also unequivocally rejected the notion that the Commission was going to harm the Internet.

As he said,

No, the FCC is not ending the Internet. Or, as President Obama's first Federal Trade Commission Chairman recently put it, "the sky isn't falling. Consumers will remain protected, and the Internet will flourish." What we're doing with today's vote is reversing a two-year old decision and returning to a tried-and-true regulatory framework-one that we know from our own experience works for consumers and for innovators.

Commissioner O'Rielly was also a yes vote and in his comments said that the FCC was simply, ""reverting back to the highly successful bipartisan governmental approach that existed before."

Photo by rawpixel.com on Unsplash via the Creative Commons License

On the other hand, Commissioners Clyburn and Rosenworcel vehemently dissented from the Commission's ruling. For the two Democratic commissioners, Internet freedom means promoting competition while protecting consumer interests. They believe that the provision of Internet access service needs some baseline regulations, primarily from the FCC and not the FTC, in order to ensure that consumers are free to have equal access to the Internet, Internet content, and Internet speeds. Both Clyburn and Rosenworcel saw the rollback of net neutrality as an overreach by a Commission that they argue has not listened to the public.

In her comments, Rosenworcel stated,

So after erasing our net neutrality rules what is left? What recourse do consumers have? We're told don't worry, competition will save us. But the FCC's own data show that our broadband markets are not competitive. Half of the households in this country have no choice of broadband provider. So if your broadband provider is blocking websites, you have no recourse. You have nowhere to go. We're told don't worry, the Federal Trade Commission will save us. But the FTC is not the expert agency for communications. " But at the same time, the FCC all but clears the field with sweeping preemption of anything that resembles state or local consumer protection.

Rosenworcel's sentiments echoed those of Commissioner Clyburn who said,

Reclassification of broadband will do more than wreak havoc on net neutrality. It will also undermine our universal service construct for years to come, something which the Order implicitly acknowledges. It will undermine the Lifeline program. It will weaken our ability to support robust broadband infrastructure deployment. And what we will soon find out, is what a broadband market unencumbered by robust consumer protections will look like. I suspect the result will not be pretty.

In an already heated discussion, the net neutrality decision also sparked a discussion on the actual role of the agency. In Commissioner Clyburn's strong dissent, she said that the FCC was soon to be "toothless" and is,

"handing the keys to the Internet - the Internet, one of the most remarkable, empowering, enabling inventions of our lifetime - over to a handful of multi-billion dollar corporations. And if past is prologue, those very same broadband Internet service providers, that the majority says you should trust to do right by you, will put profits and shareholder returns above, what is best for you.

Photo by Glenn Carstens-Peters on Unsplash via the Creative Commons License

Meanwhile, her Republican colleagues argued that they do not find that it is the role of the Commission to oversee the Internet. As Chairman Pai stated, "What I am saying is that the government shouldn't be in the business of picking winners and losers in the Internet economy," he said. "We should have a level playing field and let consumers decide who prevails" It is time for us to return to the bipartisan regulatory framework under which the Internet flourished prior to 2015. It is time for us to restore Internet freedom."

This decision is also intended to restore the FTC's ability to protect consumers from unfair and deceptive practices by Internet Service Providers online (we wrote about this back in 2016).

As readers know, the debate over net neutrality is far from over. There is no doubt that the Commission's Order will be subject to court appeals. Furthermore, members of Congress say that they want to pass bi-partisan legislation on this matter.

All that said, keep an eye on CommLaw Blog for future developments in this heated debate. In the meantime, take a look back at how we got here by catching up on our net neutrality posts of yesteryear.