Internet service providers are launching a multitude of counterattacks to try to reverse the Federal Communications Commission’s open Internet protections, and it’s up to all of us to keep on defending the rules in several forums. Now that the rules are officially on the books, the ISPs and the trade associations that represent them have filed several challenges against the FCC. The petitioners include AT&T, CenturyLink, the American Cable Association, NCTA, US Telecom, CTIA--The Wireless Association, and Alamo Broadband, and they claim the FCC does not have legal authority to implement real net neutrality rules. Meanwhile, some members of Congress are also taking aim at the FCC’s rules, introducing a slew of bills, each purporting to address some part of the agency process that only seem to be in response to the FCC’s rules. Fundamentally, these attacks all amount to the same thing -- conservative backlash at the behest of the ISP industry to weaken the Commission’s ability to protect consumers and the public interest.
MORE FLIES WITH HONEY: First, Sens John Thune (R-SD) and Fred Upton (R-MI) introduced bills before the FCC even voted, sensing the strong regulations coming and hoping to head the Commission off at the pass. They claim the bill legislatively protects net neutrality by preventing non-throttling and non-blocking, but these are in fact only two subcategories of the myriad of ways ISPs can and have demonstrated anti-consumer, anti-competitive practices online. More importantly, the bill revokes the Commission’s authority over any other aspect of the broadband ecosystem, forever. In short, though the bill paid lip service to an open Internet to the casual observer, it would have rendered the FCC completely impotent. Although several Democratic supporters have indicated some openness to a bipartisan legislative proposal, the policies embodied by the FCC’s rulemaking must be the floor for any negotiations.
SALTING THE EARTH: An alternative -- but unsurprising -- attack came from a different faction of Congressional Republicans, headed by Rep Doug Collins (R-GA). Once the rules hit the Federal Register, the clock starts ticking on the Congressional Review Act - which allows Congress to review a “major” rule issued by any federal agency before the rules take effect (so, 60 days). The resolution (“CR”) only needs a simple majority to pass in the House and the Senate -- although the President Barack Obama can veto it, and likely would in this case. A CRA resolution has only passed once in history, during the Clinton administration - and a previous “CRA” attempt against the FCC’s 2010 rules failed. However, if successful, a CRA resolution would not only repeal the net neutrality rules, but prohibit the FCC from acting on net neutrality in any capacity again without direction from Congress.
AND THE “REFORM” KITCHEN SINK: Most recently, three members dropped three different draft “FCC process reform” bills, each of which aims to restructure how the agency functions. Each of these bills problematically bogs down the already complex and lengthy rulemaking process -- yet another obvious attempt to undermine the FCC’s ability to do its job. Regardless of whether or not any of these initiatives passes, the message to the agency is siloed disapproval of net neutrality, rather than a comprehensive exploration of how the agency can operate most productively.