December FCC Meeting Seen by Some as Most Likely for Net Neutrality Vote
FCC Chairman Ajit Pai's office has been signaling that the most likely date for a vote on revised net neutrality rules is the Dec. 14 commissioners' meeting, though it could come as early as Nov. 16, industry and government officials said Thursday. One big advantage for Pai of a later vote is that his confirmation could face an easier time on the Senate floor if the order is still pending, the officials said. The number of comments in docket 17-108 stood at almost 21.9 million at our deadline Thursday.
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“While I have no doubt that many of the reply comments do not contain substantive legal or economic arguments, due process nonetheless requires the FCC to parse through them all,” said Lawrence Spiwak, president of the Phoenix Center. “While the FCC probably has its statutory un-reclassification argument figured out, which is the central legal question ... I’m not sure the FCC has decided, as a policy matter, how much authority over Title I services it wants to abrogate. There are quite a few stakeholders who have argued that while Title II was a bad idea, the FCC still has the power … to monitor bad things on the Internet.”
A former eighth-floor adviser said the big question is whether the FCC will retain any oversight: “Pai probably wants to get rid of it, but that's harder for congressional Republicans to defend politically than if the FCC keeps a couple of baseline rules." The big question is “whether the FCC identifies an alternative source of authority," for example, Section 706 of the Communications Act, "to support any net neutrality rules,” said a lawyer whose firm represents ISPs.
The FCC should act “without undue delay but keeping all the necessary legal and procedural requirements,” said an official with ties to the Trump administration. “I would be surprised if it went later than the end of the year.” Free State Foundation President Randolph May predicted a vote by year-end.
"The FCC owes it to the entire internet ecosystem to carefully weigh both the econometric and ordinary course evidence supporting repeal of the 2015 Open Internet Order,” emailed Abigail Slater, Internet Association general counsel. “A careful weighing will debunk the argument that the 2015 Order has uniquely and severely impacted incentives to invest and innovate. Similarly, the cost benefit analysis supporting reversal of the 2015 order is thin, at best."
Advocates of keeping the 2015 net neutrality rules and retaining the classification of broadband as a Title II common-carrier service said the rules are working. Major ISPs and free-market oriented groups said Title II continues to harm investment. The FCC didn't comment.
Free Press said the rules are doing what was intended. “Indicator after indicator shows the Net Neutrality rules and the legal framework on which they rest are working to promote expression, political organization, education, and innovation online,” the group told the FCC. “Amid all the spin, hyperbole, and ad hominem attacks on Free Press both by this Chairman and the cable and phone companies he favors, one thing is clear: neither the Commission’s Notice, nor any broadband provider arguments offered in response to it during the initial comment period, articulated a ‘reasoned explanation’ for the undue and unwise change in course that the Notice proposed.”
A number of big tech players also supported the 2015 rules. “An open internet ensures that hundreds of millions of consumers get the experience they want, over the broadband connections they choose, to use the devices they love, which have become an integral part of their lives,” Apple said. Netflix offered similar comments. MPAA said the FCC should avoid interfering with efforts to combat copyright infringement in any net neutrality regulations it “maintains or adopts.”
Among others who weighed in against a rewrite of the rules, the Electronic Privacy Information Center said the FCC has to propose something to protect an open internet, even if just concurrent jurisdiction with the FTC. The FTC “lacks the ability and the political will to safeguard consumer privacy,” EPIC argued: The FCC should launch a rulemaking on “comprehensive internet privacy rules” and not rely on industry guidelines and self-regulation.
Congress must step in, the U.S. Chamber of Commerce commented. “The Chamber looks forward to working with both the Commission and Congress to achieve a long-lasting solution to maintaining a free, competitive, and open internet while removing overly-intrusive regulatory barriers to growth.” Verizon called on the FCC to reclassify broadband. “Market forces already generally compel broadband providers to abide by open Internet principles,” Verizon said. “There are significant potential harms from utility-style regulation."
Cisco supported the arguments of the major ISPs, its customers. “The reduction of competition in this arena only harms consumers and undercuts the public interest; thus, the Commission can and should reverse the Title II Order’s ban,” Cisco said.