The FCC has released the final draft of its proposal to destroy net neutrality. The order removes nearly every net neutrality rule on the books — internet providers will be free to experiment with fast and slow lanes, prioritize their own traffic, and block apps and services. There’s really only one rule left here: that ISPs have to publicly disclose when they’re doing these things.
In the proposal, the commission calls its 2015 net neutrality ruling a “misguided and legally flawed approach.” It repeatedly states that the 2015 order “erred,” was “incorrect,” and came to “erroneous conclusions.” Removing these rules, the commission now argues, will “facilitate critical broadband investment and innovation by removing regulatory uncertainty and lowering compliance costs.”
The proposal also argues that consumer protections simply aren’t necessary because Federal Trade Commission will now have oversight of ISPs. “The transparency requirement we adopt, together with antitrust and consumer protection laws, ensures that consumers have means to take remedial action if an ISP engages in behavior inconsistent with an open internet,” the proposal states.
So while blocking, throttling, and paid prioritization may be okay with the FCC, the commission says that ISPs will still have to answer to the FTC, which may or may not be okay with those things. At a bare minimum though, the FTC has to be at least somewhat accepting of them — a court has already ruled that blocking those things outright would treat internet providers like common carriers; and since this proposal removes the common carrier designation from internet providers, that won’t be allowed.
Net neutrality supporters have long argued that these policies could unfairly advantage ISPs’ own content. But in the proposal, the FCC says it thinks that won’t happen — simply because some web companies are so much wealthier than ISPs. “It is unlikely that any ISP, except the very largest, could exercise market power in negotiations with Google or Netflix,” the proposal says. It also argues that small web companies need not worry, because any deal made between a large web company, like Google, and an ISP would need to be consistent with antitrust laws.
Existing antitrust law is the commission’s answer for pretty much every problem that could come up. Why should the FCC have its own rules on the books, it essentially asks, if federal law already covers many of these things? That ignores something important, though: federal antitrust law isn’t used very aggressively, whereas the FCC could have strictly enforced prohibitions on anti-competitive behavior. It’s not a huge leap to say this change is designed to significantly loosen the regulatory leash around ISPs so that they can go off and try new practices, even if they may put consumers at risk.
And in a fun twist, the commission also intends to prevent states from passing their own net neutrality laws. Allowing states to implement their own rules, the commission says, “could pose an obstacle to or place an undue burden” on the delivery of broadband service.
The order will be voted on next month, at the commission’s December 14th meeting, where it’s almost certain to pass.