For Now, Net Neutrality's Future Is At The FCC

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Robbie's Round-Up for the Week of May 1-5, 2017

Don’t look to courts or Congress, the next net neutrality decision is coming from the FCC

In the week since Federal Communications Commission Chairman Pai benton logoopened a new chapter in the ongoing network neutrality debate, the courts and Congress have confirmed that the ball is squarely in the FCC's court. The U.S. Court of Appeals for the D.C. Circuit rejected a request to further review the net neutrality rules it upheld in 2016, citing the Chairman’s upcoming Notice of Proposed Rulemaking (NPRM) as the reason. In the legislative branch, Republican Senators introduced a bill that would nullify the FCC’s net neutrality rules and prevent any future action by the FCC. But Senate Democrats claim a bipartisan compromise is highly unlikely. For now, net neutrality's future is at the FCC.

D.C. Circuit Rejects Request for Net Neutrality Review

On May 1, the U.S. Court of Appeals for the D.C. Circuit rejected a request by large telecommunication companies to further review the court’s decision upholding the FCC’s net neutrality regulations.

In March 2015, AT&T, Comcast, and Verizon — through their Washington lobbying group USTelecom — sued the FCC claiming government overreach when the agency adopted net neutrality rules. A three-judge panel of the court ruled in the FCC’s favor in June 2016, prompting USTelecom and its allies in the wireless and cable industries to seek a rehearing before the full court. The D.C. Circuit’s rejected that request.

In its denial for what is called an en banc review, the D.C. Circuit cited Chairman Pai’s plans to repeal the net neutrality rules:

En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order. The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one. In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement.

In their concurrence in the denial, two of the judges who rendered the initial decision defended it, not as a matter of a verdict on the policy, but on the legality of the FCC's authority to make it. "Our task is not to assess the advisability of the rule as a matter of policy," wrote Judges Srinivasan and Tatel. "It is instead to assess the permissibility of the rule as a matter of law. Does the rule lie within the agency’s statutory authority? And is it consistent with the First Amendment? The answer to both questions, in our view, is yes."

Chairman Pai said he was not surprised by the D.C. Circuit’s rejection. “Their opinion is important going forward, however,” he said, “because it makes clear that the FCC has the authority to classify broadband … as [a more lightly regulated] information service, as I have proposed to do.”

FCC Commissioner Michael O'Rielly, who supports Pai's new network neutrality proposal, voiced his displeasure with the appeals court:

I disagreed with the Court’s 2016 split decision, and also disagree with the split decision not to reconsider the matter en banc. However, this issue is somewhat moot for now as the Commission is under new leadership and headed in a far better direction. Rehashing old history here makes little sense, except to highlight the questionable degree of deference the court afforded the Commission – which, in all fairness, should also apply in the event that any future Commission action on net neutrality is reviewed.

Does This Mean Net Neutrality is Poised for a Supreme Court Showdown?
Opponents of the net neutrality rules claim that the D.C. Circuit’s decision paves the way for an appeal to the Supreme Court. “I'm super excited,” said Daniel Berninger, one of the critics who sued the FCC in 2015. “When we get to the Supreme Court, we want to be saying [to a largely conservative bench] this is a severe case of government overreach.” If the Supreme Court agrees to take the case, it could hear oral arguments next spring, said Berninger, who intends to file his appeal within 90 days.

But legal analysts say that Chairman Pai's forthcoming regulatory process to roll back the net neutrality rules will keep the Supreme Court from weighing in. Andrew Schwartzman, Benton Senior Counselor at the Public Interest Communications Law Project at Georgetown University Law Center's Institute for Public Representation (IPR), said the Supreme Court will likely take a pass. “The likelihood that Chairman Pai will seek to abandon the commission's 2015 decision greatly diminishes the already low likelihood that the Supreme Court would want to hear the case.”

Senate GOP Introduces Bill to Nullify Net Neutrality Rules

On May 1, Sen Mike Lee (R-UT) introduced the Restoring Internet Freedom Act (S. 993), a bill that would nullify the FCC’s 2015 net neutrality rules. The bill is cosponsored by Sens John Cornyn (R-TX), Tom Cotton (R-AR), Ted Cruz (R-TX), Ron Johnson (R-WI), Rand Paul (R-KY), Thom Tillis (R-NC), Ben Sasse (R-NE), and James Inhofe (R-OK).

The full bill text is not yet available, but according to Jon Brodkin for ars technica, it appears to be identical to the bill with the same name introduced last year (S. 2602). That bill would have prohibited the FCC from ever again issuing a new net neutrality rule "unless the rule is specifically authorized by a law enacted after enactment of this Act." The "Restoring Internet Freedom Act" would prohibit the FCC from classifying ISPs as common carriers under Title II of the Communications Act and "from imposing certain regulations on providers of such service."

Senate Commerce Committee Chairman John Thune (R-SD) is pushing to draft bipartisan legislation that would put the key tenets of net neutrality into law. “We have the makings and the outline of a bill, but we’re not going to move forward until we’re convinced that we’ve got some Democrats who are willing to work with us,” Chairman Thune said. “This, in the end, is going to have to be a bipartisan solution.”

Democratic Senators, including Sens Ed Markey (D-MA), Richard Blumenthal (D-CT), and Brian Schatz (D-HI) have all said that Republican Senators have been too far to the right on net neutrality for them to come to the table on a compromise. At Wednesday’s Senate Commerce Committee hearing on broadband deployment, Ranking Member Bill Nelson (R-FL) said that a bipartisan net neutrality bill appears impossible. He said:

...lasting finality can only come from legislation, which is why I have been open to finding a true bipartisan solution on this issue. The reality we’re facing right now is that there are too many folks, from Chairman Ajit Pai to the stakeholders and lawmakers who are dug in on a particular side of this issue, so it is making compromise an impossible task.

House Commerce Committee Ranking Member Frank Pallone Jr. (R-NJ) compared Republican net neutrality legislation to the ongoing battle over healthcare. “Why should I believe they’re gonna do anything positive?” he asked. “President Trump and the Republican leadership literally right now are telling everyone that their replacement for the ACA repeal is going to guarantee everybody health insurance — same quality, same benefits. But if you look at the bill, it’s a total lie.”

Did Pai Break the Law with his Net Neutrality Rollout?

Senator Schatz raised concerns this week that Chairman Pai may have skirted the law in the the way he introduced his net neutrality roll back because he appeared to take a clear position on the proposal before it was even shared with fellow FCC commissioners. “He sounded more like a political person taking a political position than someone who was going to really inquiry into the best path forward,” said Sen Schatz. “I think it is legally consequential.”

The statute states that the FCC must first consider public comment before taking a specific position on a policy. “They are supposed to receive public comment. They are supposed to establish a public record,” Sen Schatz said. “You would never have anybody in judiciary announcing their position, declaring that they will ‘win in the end,’ that ‘this is a fight and they intend to win it.’"

An FCC spokesperson defended Pai's comments, saying, “Like Chairman Wheeler before him and all others in FCC leadership, the law is clear that Chairman Pai can express his opinion and speak out in favor of his proposed approach to ensuring Internet Freedom. As Chairman Pai made clear in his speech, he intends to seek public input on his proposal and that 'this will be the beginning of the discussion, not the end.'"

Sen Schatz did note that his contention was preliminary, that he was still conducting his own analysis on the issue, and that he encouraged pro-net neutrality advocacy groups to launch their own inquiries. “It’s for others in the litigation space to figure out whether there’s something there or not. But the fact that he is announcing the outcome in advance seems contrary to the statute,” he said.


The D.C. Circuit’s en banc denial and the current lack of a bipartisan support for net neutrality legislation means that the future of net neutrality is in the hands of the FCC and Chairman Pai’s 2-1 majority. The FCC will consider the net neutrality NPRM at its May meeting on May 18. As net neutrality enters this new chapter, we can expect a fierce battle ahead, as public advocates, trade groups, politicians, and citizens will all make noise about how best to protect a free and open Internet. Rep Pallone noted, “The public outcry can work — it has saved the open internet before — tell everyone to make some noise. Write to the FCC, call your representatives in Congress, go to the town halls, and I think it will make a difference.”

As always, you can follow along with the day-to-day news on net neutrality in Headlines.

Net Neutrality Conversation Highlights

Pro-Pai NPRM

Against Pai’s NPRM/Pro Net Neutrality

Events Calendar for May
May 10 -- Connected Communities, Voices for Internet Freedom Coalition
May 18 -- Federal Communications Commission Open Meeting (May 2017)
May 24 -- Planning For the Future, FTC
May 24 -- Partnership for Progress on the Digital Divide, 2017 International Conference
May 31 -- United States of Anchors: SHLB's Seventh Annual Conference, SHLB Coalition

ICYMI From Benton
benton logoLooking Ahead to the Connect America Fund Phase II Auction, Carol Mattey
benton logoNet Neutrality’s New Chapter, Kevin Taglang

By Robbie McBeath.