Battle Over Broadband: What’s Next for Net Neutrality

Ted Johnson

Updated 16 December 2017 at 11:13 am

WASHINGTON — Robert McDowell, a Republican former FCC commissioner, on Friday tweeted out a comment: “Testing. Testing. Just wanted to make sure that the #Internet was still working this morning. Phew!”

McDowell supports the FCC’s rollback this week of many of their current net neutrality rules, and the sarcastic tweet was a comment on the dire rhetoric that has surrounded the debate.

But activists, public interest groups and Democratic lawmakers are not only mounting challenges in Congress and the courts, but also hope that the issue resonates into the 2018 midterm election.

While FCC Chairman Ajit Pai and other fellow Republicans on the commission say that the fears of what will happen without the rules are way overblown, their vote does mean that ISPs are no longer explicitly barred from blocking or throttling content, or from selling fast lanes of traffic to websites and content companies that want speedier access to the consumer.

Internet providers will still have to disclose when they handle traffic that way, but the FCC’s authority over broadband has been dramatically scaled back. Enforcement largely will fall to the Federal Trade Commission.

Here’s what’s ahead in the coming months:

Lawsuits. In the immediate aftermath of the FCC’s vote, New York’s attorney general Eric Schneiderman said he would lead a multi-state lawsuit to stop the repeal. He has said that the agency’s process for rolling back the rules was “corrupted” because his own study found millions of public comments on the record were coming from stolen identities and fake accounts.

The rules are likely to be challenged on multiple fronts. The Internet Association, which represents major internet sites like Google, Facebook and Amazon, is considering its legal options, and a number of public interest groups also are weighing litigation. A likely argument is that the FCC ignored proper administrative procedure in reversing itself just over two years after imposing the rules, when Democrats controlled the agency.

The FCC’s action still has to be entered into the Federal Register, something that could take a month or more, so lawsuits may not be filed until then.

Pai responded to the lawsuit threats by quoting from “Casablanca,” saying that he was “shocked, shocked” that the decision would be challenged in court.

In Hollywood, the Writers Guild of America, the Directors Guild of America and Independent Film and Television Alliance are among the creative community organizations expressing dismay over the FCC’s actions. The DGA said that it was a “blow to the creative community and threatens the ability of our members, and other creators, to make their works available to internet users without interference.” Whether they would join a lawsuit remains to be seen.

The MPAA has remained silent on the issue. Among its members is NBCUniversal, which is owned by Comcast, while other members have privately expressed concerns about losing net neutrality protections.

Legislation. Senate Minority Leader Chuck Schumer (D-N.Y.) said on Friday that he would try to force a vote on net neutrality using a legislative maneuver in which Congress can reverse an agency decision via the Congressional Review Act. It’s a long shot, but Democrats want lawmakers on record on the issue, especially as they head into the 2018 midterms.

A handful of Republicans, including Sen. Susan Collins (R-Maine) and Rep. Mike Coffman (R-Colo.), publicly asked the FCC to delay or cancel their actions, expressing concerns over the lack of protections. Though activists have been urging calls to Congress, the question is still whether the net neutrality issue will spill over into 2018 midterm campaigns.

Kristen Soltis Anderson, pollster for Echelon Insights and author of “The Selfie Vote,” said that she doesn’t have polling on the issue, but, “I suspect this is an issue that is buried low on the priority chart for the vast majority of voters, but to the extent that it is influencing voter, especially young voter, views on the relationship between this administration and corporate America, it could play a role.”

Meanwhile, some lawmakers in California are talking about legislation to keep the rules in place in that state. The FCC’s action on Thursday also includes a provision in which local and state net neutrality laws would be pre-empted by the federal regulations, meaning that this could all be another avenue for a court showdown.

Consumers. McDowell is right. The internet did not stop functioning on Friday, the day after the FCC’s vote. Major internet providers like AT&T and Comcast have also dismissed the opposition to the FCC’s action as hyperbole, and they say that they will continue their policies of not blocking or throttling content.

Others predicted that ISPs would be reticent to start balkanizing the internet into fast lanes and slow lanes.

In a report on Friday, Moody’s said that “at least in the near term, the cost of negative publicity on their existing businesses far outweighs the benefit of additional revenue streams these companies can generate from paid prioritization agreements. We also believe there is little incentive to alter their customers’ experience, particularly in more competitive markets, and in light of our expectation for growing competition over the long-term stemming from wireless 5G.”

Activists will remain vigilant, and fear that over time, ISPs will have the incentive to exert their power and evolve the internet into something resembling cable TV.