Proponents of net neutrality are gearing up for a long battle about the future of the Internet rules, as they prepare to take their fight with the Federal Communications Commission to the courts should the commission vote to repeal the Obama-era rules next month.
FCC Chairman Ajit Pai announced before the Thanksgiving holiday the FCC would vote Dec. 14 to roll back the net neutrality rules passed by the commission under the Obama administration. The move has been anticipated since Pai outlined his plan to do so in April. Along with announcing the vote, Pai also released a 200-page draft order called the Restoring Internet Freedom order, detailing the changes.
Net neutrality rules were designed to ensure that all web content is treated equally by Internet service providers, as they prevented providers from throttling, blocking, or interfering with traffic from certain websites. So, for example, the rules would prevent an Internet service provider from slowing web access unless a user pays a higher monthly fee. The rules were adopted by the FCC in 2015, and classified Internet access as a public utility under Title II of the Communications Act of 1934.
Pai’s proposal, though, would effectively reverse the net neutrality rules and classify Internet access as an information service under Title I of the Communications Act.
“When you get past the wild accusations, fearmongering and hysteria, here’s the boring bottom line: The plan to restore Internet freedom would return us to the light touch, market-based approach under which the Internet thrived,” Pai said during a speech Tuesday detailing the Restoring Internet Freedom order.
Pai’s proposal sparked controversy and criticism from technology companies, celebrities, and congressional Democrats, who began working to rally the public to urge the FCC to reject the changes.
Despite the public backlash, the FCC is expected to adopt Pai's Restoring Internet Freedom order and repeal of net neutrality rules, 3-2, when it votes next month. The two Democrats on the committee, Jessica Rosenworcel and Mignon Clyburn, have already said they oppose Pai's proposed changes.
But the fight over the future of the Internet isn’t expected to end there.
Democratic lawmakers hinted in April, when Pai first proposed a repeal of net neutrality rules, they would support a legal challenge to the chairman’s moves.
“In order to change the rules, Pai needs a fact-based docket to show that something has changed from two years ago,” Sen. Richard Blumenthal, D-Conn., told reporters at the time, “and nothing has changed.”
Now, with the FCC scheduled to vote, Blumenthal said he has “no doubt” final action on Pai’s proposal will face a challenge in court.
“Court challenges to the FCC’s proposal to undo net neutrality will be powerful and compelling — on both law and facts,” he said in a statement to the Washington Examiner. “The Open Internet Order was based on well-established law and 10 years of evidence strongly supported in a fact-based docket. Chairman Pai is recklessly repealing those rules, without demonstrating a significant and substantial change in factual circumstances as the statute requires.”
Already, a number of organizations have signaled they are exploring the potential for litigation.
The Internet Association, a trade group representing major tech companies including Amazon, Google, and Facebook that supports net neutrality, said it is looking over Pai’s draft order.
“Internet companies are firm supporters of the 2015 Open Internet Order and will continue our push for strong, enforceable net neutrality rules going forward,” said Noah Theran, a spokesman for the group. “We are reviewing the draft order and weighing our legal options.”
Additionally, the Electronic Frontier Foundation said it would have a “new front” to challenge Pai’s proposal: the courts.
Mitch Stoltz, a senior staff attorney at the Electronic Frontier Foundation, said several issues with Pai’s draft order will prompt a challenge within the courts.
The order, he said, “tries to justify” a repeal of net neutrality rules by “cherry-picking favorable statements,” particularly from Internet service providers that support such a roll back.
“It ignores or dismisses reams of evidence that clear, bright-line net neutrality rules nurture and support the open Internet and safeguard free speech,” he said. “As an unelected body, the FCC is required to consider public input in a meaningful way. These are the kinds of issues that invite a legal challenge.”
Legal challenges are likely to focus on the evidence put forth by the FCC to support a change of the net neutrality rules, as proponents of net neutrality believe that Pai’s order lacks factual support.
“The FCC, when it changes course like this, it has the discretion to do so, but it does have to provide a basis for making that decision,” Phillip Berenbroick, senior policy counsel at Public Knowledge, an organization focused on copyright, telecommunications, and Internet law, said Wednesday during a briefing on Capitol Hill. “We believe that, based on the evidence in the record and based on reading the draft order, while lengthy, is a bit scant on actual data analysis. We don’t frankly think they’ve done a satisfactory job of showing why their decision is not arbitrary.”
If net neutrality backers decide to bring Pai’s rollback before the courts, an appeal would likely be filed with a circuit court, though litigation is expected to be lengthy.
“There are no guarantees,” Angie Kronenberg, general counsel of Incompas, a trade association representing Internet, streaming, communications and tech companies, said during the briefing. “We feel pretty confident about some of the arguments that we have that this order is arbitrary and capricious, and we feel a court would look at this very seriously.
“There’s a lot of water that’s already under the bridge, and there’s certainly a lot of evidence that’s not really dealt with in this particular order about the market power that the [Internet service providers] have,” she continued. “We don’t think the chairman has done a very good job explaining away things that the commission has taken note of of that power over the last two decades.”
Despite the potential for a long court battle, supporters of net neutrality are hopeful the courts will rule in their favor.
“We are cautiously optimistic about our chances of getting this order overturned,” Kronenberg said.