Net Neutrality Continues to Divide

By Jeffrey S. Edelstein, Partner, Advertising, Marketing and Media

In the latest developments with regard to net neutrality, just days after the U.S. Circuit Court of Appeals for the D.C. Circuit held that it would not reconsider its ruling upholding the net neutrality rules, a group of Republican lawmakers filed a bill to rescind them.

Introduced by Sen. Mike Lee (R-Utah), the Restoring Internet Freedom Act would nullify the Federal Communications Commission’s 2015 Open Internet Order and prohibit the agency from issuing a similar rule in the future, pursuant to the Congressional Review Act.

Specifically, the legislation would ban the FCC from categorizing broadband access as a utility service regulated under Title II of the Telecommunications Act. The 2015 order also established restrictions on common carriers’ practices. They cannot accept payments to prioritize some sites over others, and they cannot block access to legal content or throttle any Internet traffic.

Covered entities challenged the order, but a three-judge panel of the D.C. Circuit held last year that the rules were within the scope of the FCC’s power. Broadband providers sought en banc review from the appellate panel, but the judges denied the request, leaving the decision in place.

In addition to the new bill, FCC Chair Ajit Pai—who dissented in the vote to pass the 2015 order—has vowed to do away with at least some of the rules, and unveiled a plan that would reverse the decision to classify broadband as a utility service. The proposed Notice of Proposed Rulemaking (NPRM) also asked for public comment on the rules that prohibit ISPs from blocking or degrading traffic and creating paid fast lanes.

Opponents responded to both efforts to reverse the rules. Sens. Brian Schatz (D-Mich.) and Cory Booker (D-N.J.) sent an open letter to Pai, stating that the “public does not accept Republicans taking away their rights online in the name of corporate profit.” They were joined in their criticism by Rep. Frank Pallone (D-N.J.), who argued that without the net neutrality rules, “large corporate interests can begin to choke off conversations they don’t like and they can speed up the ones they do.”

Tech companies also weighed in, with more than 1,000 startups signing a letter asking Pai to reconsider. “Without net neutrality, the incumbents who provide access to the Internet would be able to pick winners or losers in the market,” companies including Etsy, Foursquare and Reddit said. “They could impede traffic from our services in order to favor their own services or established competitors. Or they could impose new tolls on us, inhibiting consumer choice.”

To read the order in U.S. Telecom Association v. FCC, click here.

To read the Restoring Internet Freedom Act, click here.

To read the FCC’s NPRM, click here.

To read the letter from tech groups, click here.

Why it matters: The battle over net neutrality has been contentious for years, and the current political climate ensures continued debate. All eyes will be on the FCC on May 18, when it is scheduled to vote on Pai’s proposal.



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