Net Neutrality’s Death Official In April (Cue Lawsuits)
Although net neutrality was sentenced to death some time ago last year, the actual repeal itself won't be going into effect until April, at which time a slew of lawsuits will likely roll in against the FCC.
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By Karl Bode of Techdirt
While the FCC formally voted to kill net neutrality late last year, the actual repeal of the rules doesn't occur until the repeal itself is published in the Federal Register. Sources tell Reuters that with Ajit Pai's agency having completed the finishing touches on its repeal, the publication should finally happen this week. Once that happens, there's a 60 day window before the actual repeal takes effect, meaning the rules will formally end in April:
"The U.S. Federal Communications Commission is expected to publish on Thursday its December order overturning the landmark Obama-era net neutrality rules, two sources briefed on the matter said Tuesday."
Of course that's really just the beginning of an entirely new chapter in the fight to prevent broadband monopolies from abusing a lack of competition in the broadband space (remember: net neutrality violations are just a symptom of a lack of competition, a problem nobody wants to seriously address for fear of upsetting campaign contributors).
The publication in the Federal Register opens the door to the myriad lawsuits that will be filed against the agency. Those lawsuits range from suits by Mozilla and consumer groups, to the 22 state attorneys general who say they're also suing the agency for ignoring the public interest. These lawsuits must be filed within the next 60 days. Expect the court battle to quickly begin heating up in March.
The publication also starts the 60 day shot clock on net neutrality activists' attempts to use the Congressional Review Act to reverse the FCC's repeal. As we've noted that effort needs just one more vote in the Senate, but faces a steep uphill climb in getting approval in the House, where ISP-loyal lawmakers are even more common. It would then require the signature of President Trump, something unlikely to happen. The gambit does have one primary benefit: it will force lawmakers to put their disdain for net neutrality and the will of the public down on paper ahead of the looming midterms.
That said, the lawsuits have a fairly solid shot at reversing the FCC's attack on the rules thanks to numerous missteps by the agency. As we've well documented, the FCC turned a blind eye to identity theft and comment fraud during the repeal by "someone" clearly trying to downplay massive public opposition to the FCC's plan. The FCC also made up a DDOS attack for the same purpose, and used debunked lobbyist data as the cornerstone of the repeal. Expect a lot more data on this behavior to surface during the court challenge.
As we've noted previously, you can expect ISPs to remain on their best behavior for the foreseeable future. Comcast, AT&T and Verizon policy marionettes will be eager to try and suggest that concerns about the repeal were hyperbole. ISP lawyers also won't be keen on providing any ammunition to help opponents in court. And since the next FCC or a future congress could just pass net neutrality rules again – ISP lobbyists and compromised politicians are busy pushing fake net neutrality legislation with only one real purpose: prevent real, tough rules from being passed later.
It's worth reiterating that ISPs aren't just killing net neutrality here. They're actively eroding most meaningful state and federal (FTC and FCC) oversight over a broken, uncompetitive market. And should ISPs successfully navigate all court challenges and pass their desired legislation codifying federal apathy into law, the result won't be subtle. Anybody that thinks otherwise hasn't watched Comcast do business the last few decades.
