More than four months after the Federal Communications Commission voted to repeal net neutrality rules, the rules are technically still on the books, and we still don’t know when they will die their final death.
If you think that’s strange, you’re not alone. Harold Feld, one of the top experts on telecom law among net neutrality supporters, wrote this week that the situation is “highly unusual.
“There is absolutely no reason for FCC Chairman Ajit Pai to have stretched out this process so ridiculously long,” Feld wrote. “It is especially puzzling in light of 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,” the FCC statute that governs common carriers.
Why are the rules still in place? There’s a technical answer related to how Pai structured the repeal, and there is speculation on why Pai structured it that way.
A convoluted process
The technical answer is that the repeal is contingent on US Office of Management and Budget [OMB] approval of modified information collection requirements.
While Pai’s repeal will totally eliminate the rules against blocking, throttling, and paid prioritization, he isn’t completely eliminating the “transparency” rules that require Internet service providers to publicly disclose network management practices. Because the transparency rules are being changed, the OMB has to approve the changes. The core rules against blocking, throttling, and paid prioritization remain in place until that happens.
You may have seen reports in the past few days saying that the net neutrality repeal has been finalized. Those reports were incorrect, though perhaps understandably so given that this process is kind of confusing. The FCC published its “Restoring Internet Freedom” repeal order in the Federal Register in February. The post-publication 60-day waiting period would have let the repeal take effect on April 23, if not for the FCC’s decision to make the core changes contingent on OMB approval.
The only change yesterday was “a non-substantive title change” that switched the title of the FCC rules from “Protecting and Promoting the Open Internet” to “Internet Freedom,” a spokesperson for Pai told Ars.
Feld says the FCC could have structured the repeal in a different way that would have allowed the net neutrality rules and the Title II classification of ISPs to be repealed before the OMB signs off on information collection requirements. In fact, the Obama-era FCC ensured that the core net neutrality rules took effect in June 2015 even though the OMB didn’t approve information collection changes until December 2016—.
Pai’s FCC got around to submitting the information collection changes to the OMB on March 28. The OMB will stop accepting public comments on the changes after April 27, but we don’t know when the OMB will issue a final decision.
That’s the technical answer of why the net neutrality rules and the Title II classification of ISPs are still in place.
Delay could be strategic
Feld has some guesses as to why the FCC followed this slower process. “The kindest interpretation is that since the majority have made their (weakened) disclosure rule the centerpiece of why they can relax the rules, they don’t want the repeal to go into effect without the new transparency rule,” Feld told Ars.
That’s basically the explanation given by Pai’s office, which told Ars yesterday that “the reason was to make a smooth transition between the new framework and the old one.”
But Feld thinks it’s more likely that Pai chose a slower repeal process to give Congressional Republicans time to implement a weaker set of net neutrality rules without the distraction of Internet providers operating in a rule-free environment. “They are as aware as everyone else that the ISPs will inevitably do something stupid or greedy and trigger an even bigger backlash than they have on their hands now,” he said.
Pai has been fond of saying that the net neutrality repeal hasn’t harmed consumers, but that’s a pretty low bar to clear given that the rules are still in effect.
If the rules were eliminated this week and ISPs began violating net neutrality while Congress is negotiating a permanent net neutrality law, it would be harder for Republicans to force Democrats to compromise, Feld said. “This has all been about trying to push Democrats to compromise and adopt weak legislation.”
Democrats aren’t backing down
Republican lawmakers are pushing legislation that would let ISPs charge online services for prioritization; Republicans also want to prohibit state governments from enacting stricter net neutrality laws and prohibit the FCC from imposing any type of common carrier regulations on broadband providers.
But Democrats haven’t been backing down. Instead of compromising, Democrats have been pushing a Congressional Review Act bill that would simply reverse the FCC’s net neutrality repeal and ensure that the existing rules remain in force indefinitely.
Democrats don’t have the votes to get a repeal reversal through Congress, and Trump could veto it, anyway. But Democrats and consumer advocates have made it clear that they think net neutrality could be a significant campaign issue in the November elections.
US Senate Minority Leader Chuck Schumer (D-N.Y.) intends to force a roll call vote on the Democrats’ bill, saying that “with a roll call vote, Republicans will have a chance to right the [Trump] administration’s wrong and Americans can see for themselves who really has their back in this Congress.”
Democrats may also want to avoid voting for a weak net neutrality bill while state attorneys’ general pursue their lawsuit against the FCC. If successful, that lawsuit could reinstate the full set of rules.
Net neutrality as a campaign issue
Congressional Republicans hope to get the Democrats’ bill off the table, saying they want “a more realistic discussion” and that lawmakers should not “waste our efforts on partisan legislation.”
Feld thinks that Republicans underestimated the importance of net neutrality as a campaign issue and displayed “an utter refusal to believe that Democrats were actually going to find their spines on this.”
Feld’s speculation continued:
Try to remember what the world looked like all the way back in December when Pai (and the Republican leadership) made this calculation. It was a lot easier to imagine back in December that this was going to be a flash in the pan, that endangered Senate Democrats would be desperate to avoid being painted as “regulating business,” that Democrats would want any compromise that “saved net neutrality.” Using that set of assumptions, this wacky Federal Register notice makes sense. In theory, it lets Pai control the timing so as to slow things down or speed things up depending on whether Congressional Republicans want more time to negotiate or wanted to squeeze Democrats with the specter of net neutrality disappearing.
While Feld acknowledges this is speculation, he said it’s “the only reason I can think of for Pai to set up a Federal Register notice that basically lets him control when the net neutrality repeal actually goes into effect rather than pushing for it to take effect as soon as possible. It’s a negotiating ploy gone wrong, and now they are stuck.”
GOP “underestimated public reaction”
When contacted by Ars, Pai’s office didn’t provide any response to Feld’s theory that the repeal process was lengthened in order to give Congress more time to negotiate a net neutrality law. Pai’s spokesperson noted that the repeal order “clearly established that the repeal of Title II, repeal of the bright-line rules, and replacement with Title I and new transparency rule would wait until the transparency rule was approved by OMB.”
Feld’s theory “is very plausible,” said Andrew Schwartzman, a Georgetown Law lecturer and attorney who specializes in telecommunications policy.
“Republicans clearly underestimated public reaction and the Democrats’ resolve,” Schwartzman told Ars. “They likely were influenced by the fact that the ISPs have usually been able to get quiet help from some Democrats. Not any more.”