Net Neutrality repeal set for April 23 unless litigation or state action stops it

With Orwellian rhetorical flourish, the Federal Communications Commission (FCC) today published the “Restoring Internet Freedom” rule, which rolled back Net Neutrality in a party line vote last year. The repeal is set to take effect on April 23 unless Congress, the states or courts successfully intervene.

According to the FCC’s summary:

In this document, the Federal Communications Commission (Commission) returns to the light-touch regulatory scheme that enabled the internet to develop and thrive for nearly two decades. The Commission restores the classification of broadband internet access service as a lightly-regulated information service and reinstates the private mobile service classification of mobile broadband internet access service.

Net Neutrality was passed in 2015. Its repeal would allow telcos and ISPs to create traffic fast and slow lanes and to prioritize or discriminate against content types or publishers. It would also likely harm smaller publishers and startups that can’t afford to pay fast-lane fees.

Supporters of the repeal argue that criticisms of the FCC’s action are overblown, even hysterical. And former Verizon lawyer and current FCC Chairman Ajit Pai has openly mocked Net Neutrality supporters.

However there are historical examples of bad behavior and international analogies that suggest the FCC’s critics are far from hysterical. Many have speculated the internet will start to look a lot more like cable TV, with content bundles and “premium” packages, absent outside intervention from Congress, the states or the courts.

Congress has the power to reverse the FCC decision. The Senate is reportedly evenly split, with 50 votes in favor of reversing the action. Yet if one more vote can be found it would still have to pass the House of Representatives, which is more likely to support the current FCC position.

The battle will likely be won or lost in the states and the courts where state attorneys general, consumer groups and some private companies will argue an ideological shift in the composition of the FCC doesn’t justify the rule change. Irregularities and likely fraud in the rule-making comment process may also support the litigation, which will be lead by New York Attorney General Eric T. Schneiderman.

In addition, multiple states have proposed legislation that would create laws similar to Net Neutrality in their jurisdictions. However the FCC has sought to explicitly preempt these laws in the new rule. Congress has exclusive authority to regulate interstate commerce, which is the basis of the FCC’s legal argument. Despite the probable success of federal preemption against laws that simply replicate Net Neutrality at the state level, there are other legal approaches that might avoid it.

It’s not clear what if any impact these new legislative and litigation efforts will have on the April 23 repeal date. Plaintiffs in the litigation will ask courts to issue an injunction against the new rule taking effect. But it remains to be seen.