We are seeing lots of activity in the states on net neutrality. All of which raises the question — can the states actually do that? The critical question is not, as some people seem to think, whether broadband involves interstate communications or not. Of course it does. So does ye olde plain old telephone service (POTS), and state regulated that up to the eyeballs back in the day (even if they have subsequently deregulated it almost entirely).
When we think about solving the rural broadband problem, nearly everyone tries to answer the question: “How do I find a carrier to serve rural areas.” But that’s not actually the problem we’re trying to solve. The problem we’re actually trying to solve is getting people access to quality broadband so they can participate in the modern digital economy and modern society generally.
There is a great deal of excitement, but also a great deal of misunderstanding, about the effort to “repeal the repeal” of network neutrality using the Congressional Review Act (CRA). On the one hand, we have folks who are confused by the enormous progress made so far and think that we are just one vote shy of repealing the repeal. On the other extreme, we have the folks declaring the effort totally doomed and impossible from the start. I discuss the details of a CRA, and why I think we can win this (and even if we don’t, why it still works in our favor overall), below.
I keep being asked by people “Harold, can you please summarize the last 20 years of net neutrality for me while I stand on one foot?” Usually I answer: “do not do unto other packets what you find hateful for your favorite bitstream. The rest is commentary — located at 47 C.F.R. Part 8.” I will now take you on a brief tour of the history of net neutrality at Tales of the Sausage Factory (with a few outside link additions) from my first post on the Brand X case back in 2004 to June 2016, when the DC Circuit affirmed the FCC’s 2015 Reclassification and Net Neutrality Order.
Federal Communications Commission Chairman Ajit Pai has made one of those “break the ‘net” videos — but not in the usual way. In an apparent effort to either pump up his base or win over undecideds, Pai made a video called “Seven Things You Can Still Do On the Internet After Net Neutrality.” I can say unequivocally as someone doing this for 20 years, this video is truly bizarre in the annals of FCC history for a number of reasons.
No, the Draft Net Neutrality Repeal Does Not “Restore Us To 2014” — And 2014 Wasn’t Exactly Awesome Anyway.
[Commentary] A comparison of the regulatory regime in place on January 17, 2014 (the day after Verizon v. FCC) and the anticipated regulatory regime as it will exist on January 17, 2018, and the Top 3 Ways They Are Totally And Completely Different In Ways That Make Consumers Worse Off. Even if we take the most literal and favorable interpretation of “we are just rolling things back to what they were before 2015” to mean “specifically, we are setting the regulatory way back machine to that magic day of January 17, 2014, the day after the D.C. Circuit in Verizon v.
Since most folks won’t plow through 5500 words of legal analysis, I’ve gotten some requests to specifically address the claims by Federal Communications Commission Chairman Ajit Pai and others that the Federal Trade Commission can address blocking as easily as the FCC and prevent any Internet service provider from blocking any content or application. My short answer is: “No.
Federal Communications Commission Chairman Ajit Pai and defenders of the draft Order insist that a combination of the Federal Trade Commission (FTC) Section 5 (15 U.S.C. 45), state consumer protection law, and anti-trust law will provide more than adequate protection for consumers and anyone who doubts this is — you guessed it — fear mongering. Happily, we do not need to speculate on this entirely.
Four guiding principles for Congress to consider before crafting any online privacy legislation in order to create the strongest protections for consumers:
Today's draft Order shows both an appalling disregard for the record and an astounding disregard for even the basics of administrative law. It would seem more likely, as some have suggested, that Chairman Pai and Congressional Republicans have released this Order to create a crisis atmosphere and push through legislation authored by the cable companies rather than in a serious attempt at policy.