No, Net Neutrality Isn't Officially Dead (Yet), And The FCC Is Stalling For A Reason

from the buying-time dept

Numerous news outlets this week proudly, but inaccurately, declared that net neutrality was now officially dead. CNET was one of several outlets forced to walk back its headline and story proclaiming net neutrality's premature demise after industry watchers pointed out that wasn't actually the case. If you look at the actual net neutrality repeal order, you'll note that it's actually pretty wishy washy in terms of the actual repeal date:

"Effective dates: April 23, 2018, except for amendatory instructions 2, 3, 5, 6, and 8, which are delayed as follows . The FCC will publish a document in the Federal Register announcing the effective date(s) of the delayed amendatory instructions, which are contingent on OMB approval of the modified information collection requirements in 47 CFR 8.1 (amendatory instruction 5). The Declaratory Ruling, Report and Order, and Order will also be effective upon the date announced in that same document."

Consumer advocate Harold Feld, who arguably knows more about FCC policy than anybody else in the States, dug deep into the policy weeds over at his blog explaining what's going on. The overly-simplistic version: Before net neutrality gets formally repealed and flimsy replacement policies take effect, the FCC will wait for the Office of Management and Budget (OMB) to review the much weaker transparency rule under the Paperwork Reduction Act. Once OMB signs off, the FCC will publish a second notice in the Federal Register announcing when everything goes into effect.

That's expected sometime in the next month or two, but it hasn't happened yet, meaning that net neutrality rules remain on the books, for now. Feld, meanwhile, notes this odd bureaucratic delay is not normal, but appears to be very much by design:

"This is, to say the least, highly unusual. 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 because every day — nay every minute! — ISPs suffer under the horrible, crushing burden of Title II is another day in which Princess Comcast Celestia, Princess Twilight Verizon Sparkle, and all the other Broadband Equestria Girls must endure the agonies of a blasted regulatory Hellscape rather than provide us all with wonderful new innovative services at even lower cost than they do now."

The question then becomes: why is Ajit Pai's FCC taking so long to formally repeal rules he (falsely) claims are devastating Comcast, AT&T and Verizon?

My informed guess (supported by at least two industry lawyers I've spoken to) is that Pai is trying to buy time. Why? ISPs know that the FCC's repeal is on shaky legal ground thanks in large part to bizarre FCC behavior and numerous ethical gaffes. ISPs like Comcast are also nervous about the fact that more than half the states in the country are now pursuing their own net neutrality rules. As such, ISP lobbyists and hired wonks are pushing for a fake, loophole-filled net neutrality law with one real purpose: pre-empting tougher state laws and preventing the 2015 rules from being re-established should the FCC lose in court.

It's likely the FCC bogged things down in bureaucracy intentionally to buy time for ISP lobbyists to try and drum up support for this bogus law. Unfortunately, as they have throughout this entire affair, ISPs appear to have misjudged the political environment here, and have faced a steep uphill climb in getting support for the crap law they wrote (incarnations of which are being pushed by Marsha Blackburn in the House and John Kennedy in the Senate).

As ISPs grow more nervous about losing in court and state net neutrality efforts, calls for an ISP crafted "Congressional solution" have only grown. But by and large most net neutrality supporters on the streets and in Congress appear to not be falling for this little ruse, knowing full well that the chance of this cash-compromised Congress actually passing tough rules are virtually nonexistent.

If you're a fan of net neutrality, the best chance in saving the rules rests with a reversal by the courts during the looming court battle. Failing that, your best bet is voting in politicians that prioritize healthy competition, truly open markets, and consumer and small business welfare over monopoly protectionism and cronyism.

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Filed Under: ajit pai, fcc, net neutrality