Despite claims that net neutrality officially died this week, the FCC has not officially posted the repeal yet.
Image: Gage Skidmore/Flickr
More than four months after the Trump FCC formally voted to kill net neutrality, the rules remain on the books. And there’s every indication that the agency is intentionally delaying the final, killing blow—just to further help AT&T, Verizon, and Comcast.
While numerous news outlets claimed net neutrality officially died this week, that’s not technically true. Before net neutrality rules can truly be scrubbed from the books, the repeal needs to not only be posted to the Federal Register, but the US Office of Management and Budget needs to sign off on the flimsy replacement protections proposed by the FCC.
But consumer advocates this week pointed out that the FCC appears to be intentionally delaying the final repeal via intentional, bureaucratic gridlock.
Harold Feld, one of the foremost authorities on FCC and telecom policy, wrote a blog post this week noting that the delay is particularly unusual for an FCC that (falsely) proclaimed that the rules had a massive, negative impact on ISPs ability to invest in broadband networks.
"There is absolutely no reason for FCC Chairman Ajit Pai to have stretched out this process so ridiculously long"
“This is, to say the least, highly unusual,” Feld observed. “There is absolutely no reason for FCC Chairman Ajit Pai to have stretched out this process so ridiculously long. It is especially puzzling in light Pai’s insistence that he had to rush through repeal of net neutrality over the objections of just about everyone but the ISPs and their cheerleaders…”
So why is the Trump FCC stalling on formally killing rules it professes were devastating to the telecom sector?
The most popular theory is that ISPs and the FCC wanted more time to garner support for their effort to pass a bogus net neutrality law. A law they promise will “solve” the net neutrality feud once and for all, but whose real intention is to pre-empt tougher state laws, and block the FCC’s 2015 rules from being restored in the wake of a possible court loss.
While it may seem like ISPs scored a major victory with last December’s vote at the FCC, that’s simply not the case. Given the FCC’s bizarre behavior during the repeal (ranging from ignoring comment fraud and identity theft during the public comment period to making up a DDOS attack), the repeal remains on some shaky legal ground courtesy of FCC ethical gaffes.
In addition to their looming legal challenge, ISPs are worried that more than half the states in the country are now pursuing their own net neutrality rules. And while ISPs successfully lobbied the FCC to include language in their repeal trying to ban states from protecting consumers, their legal authority on that front is dubious as well.
While it’s the least likely path toward restoring the rules, ISPs are also wary of an effort in Congress to use the Congressional Review Act to reverse the repeal. That effort lets a majority Congress vote reverse any regulatory action within 60 days of its appearance in the Federal Register, but obtaining the necessary votes in a ISP cash-compromised Congress has proven to be a challenge.
Facing new state rules, overwhelming public anger, a potential CRA reversal and shaky legal prospects in court, ISP lobbyists have come up with a novel policy solution to these threats: throwing their support behind a fake net neutrality law.
ISP lobbyists have convinced loyal lawmakers (Marsha Blackburn in the House and John Kennedy in the Senate) to push a law they claim will finally put the long-standing debate to rest. Their proposed law prohibits things ISPs never had any real intent of doing (blocking websites), while carving out vast loopholes to numerous other anti-competitive behaviors.
"They thought they could stampede Democrats into caving. They totally misread the political reality"
Potentially anti-competitive behaviors like zero rating (using usage caps to penalize competing services) or paid prioritization (letting deeper-pocketed companies buy a distinct network advantage over competitors) are all allowed under the proposal. Blackburn spent much of last week trying to make anti-competitive behavior sound appealing.
Except the legislation’s real goal isn’t to protect net neutrality. The goal is to pre-empt tougher state proposals, and to prevent the FCC’s 2015 rules from being reinstated should ISPs and the FCC lose in court.
As such, it’s believed that the FCC intentionally dragged out the official repeal to give ISPs time to drum up support for their trojan horse.
“It's the one thing that makes sense,” Feld tells me. “They thought they could stampede Democrats into caving. They totally misread the political reality.”
Given that net neutrality rules have broad, overwhelming bipartisan public support, it certainly wouldn’t be the first time ISP lobbyists misread their advantage. And while ISPs have funded countless editorials from ISP-funded groups trying to generate support for their gambit, most net neutrality advocates in Congress appear to see the effort as the ruse it is.
By and large the best chance to restore net neutrality rests with the looming court battle, which should begin sometime in the next few months. Barring that, the best remaining option will be to vote lawmakers out of office that were willing to sell out consumers, competition and the health of the internet simply to help regional telecom monopolies.
Meanwhile, as ISPs grow increasingly nervous about the repeal chances for survival, they’re going to be pushing harder than ever for a bogus legislative solution to a problem they themselves created.