By Brandon Schall, Staff Writer
Since the adoption of the Protecting and Promoting the Open Internet rules, better known as net neutrality, by the Federal Communications Commission (FCC) on Feb. 26, 2015, there has been controversy.[1] The FCC adopted the rules on a 3-2 vote and Chairman Tom Wheeler said, “[N]o one — whether government or corporate — should control free open access to the Internet.”[2] More than 4 million people commented on the purposed rules, during the public comment period.[3] The Commission ultimately adopted the rules and released the order on March 12, 2015, and many groups vowed to challenge the rules in court.[4]
Shortly after the rules were adopted, AT&T and other major wireless and cable industry groups filed a lawsuit in the D.C. Circuit Court of Appeals to overturn the order.[5] Two of the biggest issues challenged by industry groups were (1) whether the FCC had the authority over the internet and (2) whether wireless carries should continue to be shielded from anti-blocking and discrimination rules due to the unique, shared nature of their networks.[6] The court heard oral arguments on Dec. 4, 2015, and on June 14, 2016, upheld Net Neutrality. Specifically, the court held that FCC had the proper authority to reclassify broadband internet under Title II of the 1934 Telecommunication Act, noting:
The problem in [the previous lawsuit] was not that the Commission had misclassified the service between carriers and edge providers but that the Commission had failed to classify broadband service as a Title II service at all. The Commission overcame this problem in the Order by reclassifying broadband service — and the interconnection arrangements necessary to provide it — as a telecommunications service.[7]
Additionally, the court ruled that the regulation should apply to both wired and wireless internet, striking down the wireless carriers’ argument.[8]
On Nov. 8, 2016, Donald J. Trump defeated Hillary Clinton to be elected as the 45th President of the United States.[9] After President Trump’s election, FCC Chairman Tom Wheeler announced that he would step down at the end of President Barack Obama’s term.[10] Shortly after taking office, President Trump nominated Commissioner Ajit Pai, a Republican who voted against net neutrality, to replace Chairman Wheeler for the rest of his term.[11] With Chairman Pai taking over, two vacancies were left at the commission. By law, no more than three members of the commission can be of the same party.[12] Thus, President Trump nominated Brendan Carr, a Republican, who was a former aide to Chairman Ajit Pai when he was a commissioner at the FCC, and Jessica Rosenworcel, a Democrat, who was a former commissioner and senate aide.[13]
The Senate Committee on Commerce, Science, and Transportation held a hearing on July 19, 2017, for Chairman Pai, Commissioner Carr, and Commissioner Rosenworcel.[14] Because Chairman Pai was appointed to fill Chairman Wheeler’s term, he had to be reaffirmed by the Senate for a full term as Chairman. He received a voice vote in Committee on Aug. 2, 2017, and was confirmed by the Senate on Oct. 2, 2017 by a vote of 52-41.[15] Commissioner Rosenworcel received a voice vote in Committee on Aug, 2, 2017, and was confirmed by the Senate on Aug. 3, 2017 by a voice vote.[16] Commissioner Carr received a voice vote on Aug. 2, 2017, to fill the remainder on Chairman Pai’s vacated commissioner seat and a recorded vote was taken in committee for Carr’s follow-on term.[17] On Aug. 3, 2017, he was confirmed by a Senate voice vote.[18] Commissioners Migon Clyburn and Mike O’Rielly terms were still running, and with the confirmation of the chairman and two other commissioners, the FCC seats were filled.[19]
In April 2017, Chairman Pai called for a repeal of net neutrality rules.[20] The FCC, with only three of the five commissioners appointed, voted 2-1 to begin the formal rule-making process to repeal net neutrality rules.[21] Administrative actions are governed by the Administrative Procedure Act of 1946 (APA), which sets formal guidelines for rulemaking and adjudication.[22] Since net neutrality was already law, to order to repeal the rules, the Commission must follow the same procedures under the APA as the rules that were adopted. Under the APA, “although regulations may be repealed or amended and new rules and regulations adopted, the changes must be made in conformity with prescribed statutory procedures.”[23]
On June 2, 2017, the FCC released a notice of proposed rulemaking (NPRM), Restoring Internet Freedom, seeking comments on ending the FCC’s regulation of the internet as a public utility, under Title II, and returning to the “light-touch” regulatory framework under Title I.[24] Comments to the NPRM were due on July 17, 2017, and reply comments were due before August 16, 2017.[25] The Commission received more than 20 million comments about net neutrality.[26] While the comments were divided, concerns were raised over the thousands of potential fake or automated comments submitted during the comment period. A number of the comments were sent from “distinct email addresses, ‘all generated by a single fake e-mail generator website.’ Some 400,000 comments backing the rules . . . originate[d] from a mailing address based in Russia.”[27] Despite the concerns about potential fraudulent comments, the FCC moved forward with the repeal of net neutrality rules.
On Dec. 11, 2017, the FCC and the Federal Trade Commission (FTC) announced that they had reached an agreement for the two agencies to coordinate online consumer protection efforts.[28] This effort was created to ensure that consumers would not be hurt by the repeal of the rules.[29]
On Dec. 14, 2017, the commission on a 3-2 vote repealed the rules place the internet under Title II, by adopting the Restoring Internet Freedom Order, repealing net neutrality.[30] The order reversed the Title II framework, which Chairman Pai has suggested will spur investment, innovation, and competition and increase transparency to protect consumers.[31] The news release specifically states that the FCC “today voted to restore the longstanding, bipartisan light-touch regulatory framework that has fostered rapid internet growth, openness, and freedom for nearly 20 years.”[32] Chairman Pai noted:
The Internet is the greatest free-market innovation in history. It has changed the way we live, play, work, learn, and speak. During my time at the FCC, I’ve met with entrepreneurs who have started businesses, doctors who have helped care for patients, teachers who have educated their students, and farmers who increased their crop yields, all because of the Internet. And the Internet has enriched my life immeasurably. In the past few days alone, I’ve downloaded interesting podcasts about blockchain technology, ordered a burrito, managed my playoff-bound fantasy football team, and—as you may have seen—tweeted.[33]
Commissioners O’Rielly and Carr voted to pass the order, while Commissioners Clyburn and Rosenworcel voted against the order.[34] The order was released to the public on Jan. 4, 2018, and will become effective April 23, 2018.[35]
Despite the release of the order by the FCC, Congress has the right to stop any proposed rule, enacted by an agency, from going into effect within 60 legislative days under the Congressional Review Act of 1996.[36] In 1996, Congress passed the Congressional Review Act (CRA), which required that proposed federal agency rules must be submitted to Congress before a rule could take effect, allowing Congress to allow the rules to go into law or to pass a joint resolution of disapproval of the rule.[37] Generally, this rule is used early on in a new presidential term, Congress will pass a joint resolution of disapproval of the rules, and the president then has the option to sign the resolution and kill the rules.[38] Congress and the White House used the CRA 14 times since President Trump took office to overturn regulations proposed and/or passed under President Obama’s administration.[39] Recently, Sen. Cory Booker (D-NJ), introduced S. 1140, the SCRAP Act, which would repeal the Congressional Review Act (CRA); the bill has only one co-sponsor and is unlikely to pass before the repeal of net neutrality passes.[40] Additionally, Congressman, David Cicilline (D-RI) introduced a similar bill in the House of Representatives, H.R. 2449, The SCRAP Act.[41]
On Feb. 27, 2018, Sen. Edward Markey (D-MA) introduced a joint resolution, S.J. Res. 52, providing for congressional disapproval under chapter 8 of title 5, United States Code, of the order adopted by the Federal Communications Commission relating to “Restoring Internet Freedom.”[42] S.J. Res. 52 has the support of all Senate Democrats and the two Independents that caucus with the Democrats.[43] Recently, Republican Susan Collins (R-Maine) said she would support Sen. Markey’s resolution but has not signed on as a co-sponsor.[44] The resolution would need the support from one more Republican to pass in the Senate.[45]
Additionally, Congressman Mike Doyle (D-PA) introduced the same resolution in the U.S. House of Representatives, H.J. Res. 129.[46] The bill is co-sponsored by 157 Members but does not have a Republican co-sponsor.[47] Even if the Senate is able to pass its resolution, it is unlikely that the House would pass a similar one. However, even if both Houses of Congress were able to pass a joint resolution, President Trump has not signaled any support to sign the joint resolution, which would leave the repeal of net neutrality intact.
In February 2018, 22 Democratic state attorneys general re-filed a lawsuit to preserve net neutrality.[48] New York Attorney General Eric Schneiderman, who argues that under the APA, the FCC is prevented from “arbitrary and capricious” redactions to already existing policy, is leading the lawsuit to stop the rules from going into effect.[49] The suit was filed in the U.S. Court of Appeals for the District of Columbia Circuit on behalf of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.[50] Additionally, 11 other lawsuits have been filed against the FCC.[51] Ultimately, the U.S. Appeals Court for the Ninth Circuit will hear the case in San Francisco.[52]
Additionally, States have begun pushing back against the FCC. In March, Washington became the first state to pass a net neutrality law.[53] Furthermore, a dozen other states are considering similar pieces of legislation.[54] Most recently in Connecticut, state senators blocked a net neutrality bill from being passed.[55] Despite the action by Washington State, the FCC decision, if upheld, would preempt states from making their own net neutrality laws.[56]
Separately, Congress has introduced bills aimed at rewriting the Telecommunications Act of 1934, which would end the uncertainty concerning net neutrality rules. Rep. Marsha Blackburn (R-TN) introduced the Open Internet Preservation Act, H.R. 4682, to address net neutrality.[57] The bill would “prohibit broadband internet access service providers from: (1) blocking lawful content, applications, services, or non-harmful devices; and (2) impairing or degrading lawful internet traffic on the basis of internet content, application, or service, or use of a non-harmful device.”[58] Additionally, Sen. John Kennedy (R-LA) introduced a similar bill in the Senate: S. 2510.[59] Neither bill has gained much traction. Many political pundits believe this could be a key issue in the upcoming midterm elections, and that is the main reason for the lack of support for the bills.[60] Furthermore, lawmakers may be waiting to see what the courts say about the legality of the FCC’s actions.
Net neutrality has been an issue since the rewrite of the Telecommunications Act of 1996, when Congress stated that Title I was for “information services” and Title II was for “common carriers” (public utilities).[61] Back then, the FCC Chairman noted he did not think Title II regulations should cover cable modem services.[62] However, with the rise of the internet and over a decade of legal fights in court, the issue as to whether the FCC had authority over the internet was finally settled in court in 2014.[63] More recent court decisions have led the FCC to apply Title II regulations to the internet under Chairman Wheeler.
With the membership change at the FCC in 2017, the FCC decided to propose and pass new rules to repeal net neutrality. Many questions remain unanswered about the regulation of the internet including: whether the FCC has the authority under the Telecommunications Act of 1996 to regulate the internet without Congress rewriting the Telecommunications Act; whether the repeal of net neutrality rules will be upheld; and whether Congress will rewrite the Telecommunications Act to provide more clarity for the industry. Regardless of whether a person is for or against net neutrality rules, the issue will be around for the foreseeable future.
Brandon Schall is a 2019 J.D. candidate and a staff writer for Juris Magazine. He is also an elected member of the Student Bar Association and a member of the Federalist Society, Health Law Society, Environmental Law Society, International Law Society, Public Interest Law Association, and a member of Phi Alpha Delta.
Sources
[1] FCC Protecting and Promoting the Open Internet, GN No. 14-28 (2015), available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-24A1.pdf.
[2] Bill Chappell, FCC Approves Net Neutrality Rules for ‘Open Internet’, NPR (Feb. 26, 2015, 11:46 AM ET), https://www.npr.org/sections/thetwo-way/2015/02/26/389259382/net-neutrality-up-for-vote-today-by-fcc-board.
[3] Alina Selyukh, U.S. Appeals Court Upholds Net Neutrality Rules In Full, NPR (June 14, 2016, 10:42 AM ET), https://www.npr.org/sections/thetwo-way/2016/06/14/471286113/u-s-appeals-court-holds-up-net-neutrality-rules-in-full.
[4] Id.
[5] Brooks Boliek, FCC net neutrality rules hit with new telecom lawsuits, Politico (Apr. 14, 2015, 12:42 PM EDT), https://www.politico.com/story/2015/04/net-neutrality-lawsuit-ctia-116957.
[6] Selyukh, supra note 3.
[7] Id.
[8] Id. See also Alyssa Newcomb, Net Neutrality Rules Take Effect: What It Means for You, ABC (June 12, 2015, 1:56 PM ET), https://abcnews.go.com/Technology/net-neutrality-rules-effect-means/story?id=31723423.
[9] Matt Flegenheimer & Michael Barbaro, Donald Trump Is Elected President in Stunning Repudiation of the Establishment, N.Y. Times (Nov. 9, 2016), https://www.nytimes.com/2016/11/09/us/politics/hillary-clinton-donald-trump-president.html.
[10] Brian Fung, FCC Chairman Tom Wheeler is stepping down, setting the stage for a GOP majority on Trump’s first day, Wash. Post (Dec. 15, 2016), https://www.washingtonpost.com/news/the-switch/wp/2016/12/15/fcc-chairman-tom-wheeler-announces-hes-stepping-down/?utm_term=.836d33cc59d1.
[11] Jim Puzzanghera, Trump names new FCC chairman: Ajit Pai, who wants to take a ‘weed whacker’ to net neutrality, LA Times (Jan. 23, 2017, 1:50 PM), http://www.latimes.com/business/la-fi-pai-fcc-chairman-20170123-story.html.
[12] Jacob Kastrenakes, Senate confirms new FCC commissioners after seven months shorthanded, The Verge (Aug. 3, 2017, 4:28 PM EDT), https://www.theverge.com/2017/8/3/16091256/senate-confirms-fcc-nominees-rosenworcel-carr.
[13] Margaret Harding McGill, Trumps picks FCC’s top lawyer for open commission seat, Politico (June 28, 2017, 9:21 PM EDT), https://www.politico.com/story/2017/06/28/trump-fcc-vacancy-240076.
[14] Nominations, U.S. Senate Committee on Com., Sci., & Transp., https://www.commerce.senate.gov/public/index.cfm/nominations (last visited Mar. 15, 2018).
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Jim Puzzanghera, ‘Light-touch’ regulations: FCC takes step to repeal tough net neutrality rules, LA Times (Mar. 18, 2017, 1:50 PM), http://www.latimes.com/business/la-fi-net-neutrality-fcc-vote-20170518-story.html.
[21] Jim Puzzanghera, Net neutrality rules targeted for repeal by FCC chairman, LA Times (Nov. 21, 2017, 1:00 PM), http://www.latimes.com/business/la-fi-net-neutrality-20171121-story.html.
[22] See generally 5 U.S.C. §§ 500-596, available at https://www.law.cornell.edu/uscode/text/5/part-I/chapter-5.
[23] Amendment and Repeal of Rules, US Legal, https://administrativelaw.uslegal.com/administrative-agency-rulemaking/amendment-and-repeal-of-rules/ (last visited Mar. 15, 2018).
[24] Restoring Internet Freedom, WC Docket No. 17-108, Regulations.gov, https://www.regulations.gov/document?D=FCC-2017-0200-0001 (last visited Mar. 15, 2018).
[25] Id.
[26] Id.
[27] Brian Fung, FCC net neutrality process ‘corrupted’ by fake comments and vanishing consumer complaints, officials say, Wash. Post (Nov. 24, 2017), https://www.washingtonpost.com/news/the-switch/wp/2017/11/24/fcc-net-neutrality-process-corrupted-by-fake-comments-and-vanishing-consumer-complaints-officials-say/?utm_term=.5f20704be3a8.
[28] Federal agencies intend to sign Memorandum of Understanding to allocate enforcement responsibilities, FTC (Dec. 11, 2017), https://www.ftc.gov/news-events/press-releases/2017/12/ftc-fcc-outline-agreement-coordinate-online-consumer-protection.
[29] Id.
[30] Seth Fiegerman, Trump’s FCC votes to repeal net neutrality, CNN (Dec. 14, 2017, 5:00 PM ET), http://money.cnn.com/2017/12/14/technology/fcc-net-neutrality-vote/index.html.
[31] FCC Releases Restoring Internet Freedom Order, FCC, https://www.fcc.gov/document/fcc-releases-restoring-internet-freedom-order (last visited Mar. 15, 2018).
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Richard S. Beth, Cong. Research Serv., RL31160, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act (2001), available at https://www.senate.gov/CRSpubs/316e2dc1-fc69-43cc-979a-dfc24d784c08.pdf.
[37] Id.
[38] Id.
[39] C. Jarrett Dieterle, Congress uses the Congressional Review Act to abolish another regulation, R Street (Nov. 1, 2017), http://www.rstreet.org/2017/11/01/congress-uses-the-congressional-review-act-to-abolish-another-regulation/.
[40] S. 1140, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/senate-bill/1140
[41] H.R. 2449, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/2449.
[42] S.J. Res. 52, 115th Cong. (2018), available at https://www.congress.gov/bill/115th-congress/senate-joint-resolution/52/cosponsors?r=2&q=%7B%22search%22%3A%5B%22markey%22%5D%7D.
[43] Id.
[44] Jon Brodkin, GOP senator says she’ll vote to restore net neutrality rules, Ars Technica (Jan. 9, 2018, 10:25 PM UTC), https://arstechnica.com/tech-policy/2018/01/gop-senator-says-shell-vote-to-restore-net-neutrality-rules/.
[45] Id.
[46] H.R.J. Res. 129, 115th Cong. (2018), available at https://www.congress.gov/bill/115th-congress/house-joint-resolution/129/cosponsors.
[47] Id.
[48] Id.
[49] Id.
[50] See generally Petition for Review, State of N.Y. et al. v. Fed. Comm. Commission et al. (D.C. Cir. Feb 22, 2018) (No. 18-1055), available at https://ag.ny.gov/sites/default/files/petition.pdf.
[51] Jon Brodkin, FCC must defend net neutrality repeal in court against dozens of litigants, Ars Technica (Mar. 12, 2018, 4:15 PM UTC), https://arstechnica.com/tech-policy/2018/03/fcc-must-defend-net-neutrality-repeal-in-court-against-dozens-of-litigants/.
[52] David Shepardson, U.S. appeals court in San Francisco will hear net neutrality appeal, Reuters (Mar. 8, 2018, 11:27 PM), https://www.reuters.com/article/us-usa-internet/u-s-appeals-court-in-san-francisco-will-hear-net-neutrality-appeal-idUSKCN1GK380.
[53] Alyssa Newcomb, Washington state passes net neutrality law as states push back against the FCC, NBC (Mar. 6, 2018, 10:14 PM ET), https://www.nbcnews.com/tech/tech-news/washington-state-passes-net-neutrality-law-states-push-back-against-n854086.
[54] Id.
[55] Rebecca Savransky, GOP State Senators In Connecticut Block Net Neutrality Bill With Procedural Trick (Apr. 3, 2018, 8:45 AM ET), http://thehill.com/policy/technology/381380-gop-state-senators-in-connecticut-use-procedural-trick-to-block-state-net.
[56] Id.
[57] H.R. 4682, 115th Cong. (2017), available at https://www.congress.gov/bill/115th-congress/house-bill/4682?q=%7B%22search%22%3A%5B%22open+internet%22%5D%7D&r=1.
[58] Id.
[59] S. 2510, 115th Cong. (2018), available at https://www.congress.gov/bill/115th-congress/senate-bill/2510.
[60] Steven Senne, Why Net Neutrality Will Be A Campaign Issue In 2018, Wired (Dec. 21, 2017, 8:00 AM), https://www.wired.com/story/why-net-neutrality-will-be-a-campaign-issue-in-2018/.
[61] Berin Szóka, Only Congress, Not the FCC, Can Fix Net Neutrality, Wired (Mar. 17, 2017, 9:00 AM), https://www.wired.com/2017/05/congress-not-fcc-can-fix-net-neutrality/.
[62] Remarks by William E. Kennard, Chairman Federal Communications Commission At the National Association of Telecommunications Officers and Advisors 19th Annual Conference Atlanta, GA September 17, 1999, FCC, https://transition.fcc.gov/Speeches/Kennard/spwek931.html (last visited Mar. 15, 2018).
[63] Szóka, supra note 61.
