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It’s a rare happy day here in Washington. While the Congress was at loggerheads about a trade deal, the U.S. Circuit Court for the District of Columbia has turned down a motion by the Telecommunications Industry Association (TIA) that would block implementation of the Federal Communications Commission order placing Internet service providers under Title II of the Communications Act. That order took effect on June 12.
While the court wouldn’t order a stay to the Title II implementation, the court did agree to fast track the lawsuits challenging the reclassification. This was the most likely outcome for the petition filed last month after the FCC turned down the motion that it stay its order invoking Title II. Even the petitioners noted when they filed for the stay the court would be unlikely to grant it, but that didn’t stop them from trying.
What this means is that Internet service providers are now regulated under Title II rules. Net Neutrality as the FCC defines it is now in effect. That means, among other things that mobile phone carriers that were previously governed under other provisions are now regulated just like wireline phone companies. Likewise, so are cable companies and other ISPs. Paid prioritization is no longer allowed. Neither is the blocking of any legal content on the Internet.
So now that it’s finally happened, how will this all affect you? Assuming you’re an Internet user like most of us, you probably won’t notice any difference. Yes, that’s correct, after years of legal maneuvering and lobbying, hundreds of thousands of excited words in press releases and position papers advocating one view or another the end result is nothing. At least not right now.
On the other hand, you also haven’t heard the end of this. Both sides will continue until one side or the other finally prevails in the U.S. Supreme Court, but that likely won’t happen for years.
What will happen is that both sides will continue their war of words while the lawsuits drag on. That also means that the radio waves in Washington will continue to echo with commercials for one side or another of the net neutrality battle, while radio stations everywhere else have commercials for drug stores and car dealers.
It’s worth noting that Washington is the only radio market where you’re more likely to hear commercials for a mine-resistant truck than you are for a plain, vanilla pickup truck from Detroit. You’re also more likely to hear ads for vertical launch supersonic strike fighters than for Southwest Airlines.
Eventually, perhaps later this year, the Court of Appeals will hear the industry challenge to Title II regulation of the Internet. The preliminary hearings should begin shortly. Meanwhile, the opposition to the Title II reclassification is getting ready.
“There is no good reason to now have the Internet governed under antiquated and onerous regulations that will harm investment and create uncertainty for the communications industry and economy,” said TIA CEO Scott Belcher in a prepared statement.
Court’s Refusal to Stay FCC Net Neutrality Rul Only a Temporary Victory
“For this reason, we will continue to challenge the FCC’s regulatory regime — both in the courts and by working with members of Congress on both sides of the aisle. Our next step will be to file an amicus brief with the Court on why the FCC’s actions were unlawful and we continue to believe that the Court will ultimately invalidate these rules.”
Meanwhile, now that Congress is finished bickering about the trade deal, the House Appropriations Committee is about to report to the House a bill that would stop any use of appropriated funds by the FCC to implement or enforce the Title II reclassification. It’s not clear exactly if that would have any practical effect considering that the FCC has already done the implementation, unless it was to expend those funds to reverse the regulatory change.
Groups in favor of the reclassification to Title II are happy that the court refused to stay the FCC’s order. “Today’s decision clears the path for the FCC’s historic network neutrality rules to go into effect tomorrow, ensuring that the Internet will continue to be a level playing field for entrepreneurship, public debate, civic participation, and innovation,” Sarah Morris, public policy counsel for New America said in prepared statement.
While it’s nice to hear such statements from all sides claiming victory in a politically polarized Washington, the fact is that such celebrations are premature. What’s actually happened is that the court decided that there wasn’t enough cause for it to take the unusual step of calling an immediate halt to a normal function of government. Ordering such a stay would only happen if one side or the other could show immediate and irreparable damage that couldn’t be undone.
But the fact is that the FCC can be reversed and the damage can be repaired if the court decides that the FCC was out of bounds. In fact it happens all the time, as was the case in the previous net neutrality case when Verizon sued the FCC over the same issue. Verizon survived and so did the FCC for that matter.
If the court decides that the FCC overstepped its bounds, it will reverse the Title II reclassification, If the court doesn’t think the FCC is wrong, then the regulations will remain in force while the losing side appeals. Either way the decision is sure to be appealed until it’s decided on by the Supreme Court.
Unfortunately for the FCC, so far it’s batting zero on the issue legally sustaining its enforcement of net neutrality regulations and there’s no reason to think the court will change its mind this time around.
Maybe it’s time to trot out legislation, which has been skulking around Congress for a while, that assigns net neutrality its place in the law without shoehorning it into Title II.