Today is a great day for the Open Internet. The FCC voted to create strong net neutrality rules grounded in robust legal authority. That vote, and those rules, are the culmination of over a decade of hard work and an especially vigorous year by a large and diverse coalition demanding robust Open Internet protections. We’re still waiting for the details, but as of now there is every reason to view this vote as a watershed moment in the history of net neutrality. At a time like this, it is important to take a moment and appreciate the magnitude of this accomplishment.
That being said, we have already started to get questions about what happens next. The rules voted on today will define the debate around an Open Internet for the foreseeable future and establish a strong precedent in favor of robust net neutrality protections going forward. However, for better or worse, they do not bring that debate to an end. While it is unclear exactly what the next step will be, this post is an attempt to briefly outline the possibilities.
But first, a quick reminder: Public Knowledge and many of our net neutrality allies will be hosting a Reddit AMA tomorrow at 2:30. Join us if you have questions.
One set of possible next steps take place in the courts. At least one ISP has already outlined its case against the rules, and it may not be alone in planning to challenge the rules in court. That challenge can take at least two forms.
The first is called a facial challenge, and could occur immediately after the rules are formally in place (we won’t know exactly when this is until the order is released). This is the type of challenge that Verizon successfully brought against the 2010 Open Internet rules. It is a challenge to the rules as they are written – how they appear on their face. The challenge would likely focus on the nature and scope of the rules, as well as the process the FCC used to write the rules. It could be brought by one or more ISPs.
This type of challenge would begin with one or more ISP(s) petitioning the FCC to stay (or temporarily suspend) the new net neutrality rules pending a review (formed as a Petition for Reconsideration). Assuming the FCC did not immediately act on that petition, the ISP(s) would then move onto the DC Circuit, most likely combining a request for a stay with their challenge to the rules. The DC Circuit would likely decide whether or not to grant the stay fairly quickly, but the larger fight about the rules themselves would take months. Importantly, the decision about the stay is unlikely to provide very much insight into how the court will decide the challenge to the rules themselves. However, granting a stay will mean that the rules do not go into effect until the DC Circuit has resolved the larger challenge.
The second type of challenge is an as-applied challenge. Instead of immediately challenging the rules as they are written, an as-applied challenge challenges the rules as they are applied in a specific circumstance. As such, no ISP will be able to bring an as-applied challenge immediately. Instead, we will have to wait until the FCC actually punishes someone for violating the Open Internet rules. At that point, the punished ISP could challenge the rules as they were applied in that circumstance. Notably, even if the FCC wins a facial challenge to the Open Internet rules, ISPs will still be able to bring as-applied challenges in the future.
The other possible next steps take place in Congress. Next steps in the courts and in Congress are not mutually exclusive, and we will fight back against them in different ways. Similarly, each of these possible actions in Congress is potentially independent from the other.
Congressional Review Act
The first possible action is that Congress moves to overturn the FCC’s rules through a procedure outlined in the Congressional Review Act (CRA). Once the FCC’s rules are formally published, Congress has 60 days to pass a “Resolution of Disapproval” and either have President Obama sign the resolution or collect enough votes in support to override a veto. If it passed, the resolution would overturn the Open Internet rules. Further, it would prevent the FCC from any further Open Internet rulemaking until Congress itself acted. In other words, a successful CRA process would both overturn the existing rules and prevent the FCC from creating new ones. Congress attempted this after the 2010 rules but public outcry prevented them from succeeding.
The second possible action is a continuation of the process initiated by Senator Thune to pass net neutrality-specific legislation. While Public Knowledge has raised concerns about Sen. Thune’s initial draft, we welcome his commitment to work with all stakeholders to consider revisions to the legislation in the future. There is room for Congress to act in this area, and we look forward to helping craft strong legislation that really protects the Open Internet.
The third possible action is that Congress attempts to limit the FCC’s ability to enforce the rules through appropriations riders. As part of appropriating the FCC’s budget, these riders would prohibit the FCC from spending any money to enforce the Open Internet rules. Needless to say, such a limitation would significantly limit the rules’ effectiveness. These types of limitations would be included in the FCC’s larger budget and would have to pass through Congress and be approved by the President.
Communications Act Rewrite
The fourth possible action is that net neutrality gets wrapped up in a larger rewrite of the Communications Act. In the medium and long term, this is actually likely to happen. Congress has been seriously discussing updating the Communications Act since 2013, and any update would almost inevitably include rules that impact an Open Internet. While Open Internet rules may be a comparatively small part of this larger process (dwarfed by, among other things, working out rules related to the tech transition), decisions made during a rewrite would have a significant impact on the Open Internet.
All, Some, or None
Right now it is hard to know which, if any, of these will come to fruition. We here at Public Knowledge are keeping our eye on all of them. So celebrate the win and savor the victory. But keep an eye out for another alarm from us, because we’re not quite done yet.