At 11:30 EST today, the FCC voted 3-2 to adopt a proposal for net neutrality rules. This proposal is part of a public discourse that the Commission has created. This proposal comes in wake of two court rulings that have struck down FCC authority to enforce net neutrality (also known as “Open Internet“) policies.
In the live broadcast which included the vote, the commissioners passionately spoke in support of a net neutrality, citing openness as the key to the Internet’s significant value. The D.C. Circuit Court of Appeals, which recently ruled against the FCC, shares this sentiment. However, there was considerable dissent concerning the FCC means of enforcing this policy. This opposition was rooted in the fact that Congress had not explicitly given the Commission specific authority to do so. For instance, though the D.C. Circuit Court of Appeals thinks that the FCC’s interpretation of the law that they used to justify their Open Internet Order is “reasonable and supported by substantial evidence“, it doesn’t think that the way Internet Providers are classified makes them subject to the FCC’s Open Internet Order.
Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.
The proposal that FCC voted on today would use “the roadmap” that the court set out for the FCC, and reclassify Internet Service Providers as a common carriers under Title II. There was opposition to this because it would increase regulation beyond network neutrality to include things like price limits.
The FCC’s request for public discourse has direct implications to our research. Internet Service Providers have stated that they intend to maintain their network neutrality policies, even since the January ruling that has allowed ISPs to do whatever they want with their networks. Our net neutrality project has the potential to verify what is actually happening in practice.