The FCC put out its draft proposal for reversing the 2015 net neutrality order today, and the oddest thing about it may be how little the commission has thought through what to do with basic internet protections.
Rather than undoing the net neutrality order wholesale, the FCC is essentially splitting it up into two parts: one part undoes the legal authority used to implement net neutrality — a classification known as “Title II” — and the other part asks whether or not it should keep the rules, like no blocking or throttling websites, that were implemented.
“It is a very vague document that is probably designed to create as much flexibility as possible so they can do whatever they want when they ultimately come to vote on this,” Michael Cheah, general counsel for Vimeo, tells The Verge.
The proposal is primarily focused on undoing the Title II classification of internet providers, which it claims has hurt broadband investment, despite little supporting evidence. But that puts it in a very odd position regarding net neutrality — a position that, very likely, the commission is happy to find itself in.
By undoing the legal authority used to apply net neutrality rules, the commission effectively kills those rules at the same time. The commission could just let the rules die — it still might! — but it’s instead opening up questioning about whether or not it should try to keep them.
But there’s no question that, despite FCC chairman Ajit Pai’s constant proclamations of support for a “free and open internet,” whatever the commission chooses to do will have fewer guarantees that the internet will stay free and open.
The possibilities range wildly. At the most lenient, the FCC could choose to do nothing and implement no net neutrality protections at all. That’s a real possibility, as the commission seems pretty skeptical that internet providers could actually do anything to harm consumers or web companies.
In its draft proposal, the commission says there is “virtually no quantifiable evidence of consumer harm,” then goes on to ask questions like: has anything actually gone wrong? Are codified rules even necessary? And, “when is ‘throttling’ harmful to consumers?”
At the stricter end of the spectrum, the commission leaves open the possibility that it’ll implement some sort of rules to restrict internet providers from blocking apps and websites, throttling data speeds for specific apps and websites, and charging apps and websites for access to a fast lane for their data. The commission seems skeptical that most of these limitations are necessary, though it does explicitly state support for “no blocking” — in theory, at least.
“We emphasize that we oppose blocking lawful material,” the proposal says. “The commission has repeatedly found the need for a no-blocking rule on principle ... We merely seek comment on the appropriate means to achieve this outcome.”
And therein lies the big problem that the commission gets itself into — one that it will no doubt embrace. A 2014 court ruling found that the FCC does have some authority to implement these kinds of rules. But critically, implementing them in full is illegal unless they’re also using Title II.
“I don’t see how you get the core rules,” says Cheah. “Forget about the more nuanced things like the general conduct standard.”
So that necessarily means that the commission will have to implement more lenient net neutrality rules than what we got two years ago. If you were paying attention to the net neutrality debate back then, you might remember that this is why former chairman Tom Wheeler initially proposed allowing fast lanes — it seemed like the easiest way to get the rules passed without a dramatic, years-long fight like the one we’re seeing now.
This legal change presents a big problem for net neutrality advocates, as it means they’re going to have a harder time getting tough rules on the books. At the same time, it’s a good problem for net neutrality opponents, as there really is only so much the commission can do once it switches away from Title II.
“It is difficult to establish such rules without a classification of internet service providers as common carriers [under Title II],” Pantelis Michalopoulos, an attorney who argued in favor of the FCC’s legal authority under the type of rules the commission is now returning to, told The Verge earlier this week. “The chairman will have to resolve that tension.”
During a call with reporters this afternoon, senior FCC officials didn’t have much of an answer on how they’ll do that. “This is something that we will be seeking comment on in the rule making proceeding,” one official said.
Basically, they don’t know what they’re going to do — or, if they do know, they’re waiting for supportive public comments before they say it.
Cheah’s immediate takeaway is that this is “a gift" to internet providers, which one way or another are getting off with much weaker regulations. That threatens sites like Vimeo, which could be at a disadvantage if internet providers begin favoring bigger video services.
“It is not a net neutrality proposal,” Cheah says. “It is a proposal to make life easier of the internet service providers. And though it is called ‘Restoring Internet Freedom,’ it is anything but.”