It’s no secret that the incoming administration is pretty keen on gutting the 2015 Open Internet rule (aka, net neutrality) as soon as it gets a chance. But while there might be new leadership at the FCC in just over two weeks, the rules of process still apply. There’s no magic “remove it” wand for folks opposed to net neutrality to wave; there’s just the long, slow road of petitions, hearings, and evidence, which has formally kicked off this week.
Telecom trade group USTelecom is first through the gate, filing a petition [PDF] this week asking the FCC to “modify key elements” of the 2016 ISP privacy rule — and oh, while they’re at it, revisit and reverse net neutrality.
You may be thinking, “I feel like I remember the courts settling net neutrality once and for all, though?” And you’d be right: the U.S. Court of Appeals for the D.C. Circuit sided with the FCC and upheld all of the open internet order when it issued its ruling on the matter in June, 2016. Undoing that ruling takes yet another successful appeal to a higher court (namely, the Supreme Court), or else Congressional action to change the law.
But there’s a workaround, and that’s to re-petition the FCC for a new rule — or to change the old one — based on new evidence or changed circumstances, and that’s where this privacy rule petition comes in.
USTelecom filed its petition for reconsideration in response to the FCC’s recently-passed ISP privacy rule. That privacy rule in turn stems directly from net neutrality, because its legal grounding is based in the Title II reclassification of broadband that the FCC undertook in order to make net neutrality stick. So basically, it’s a place to jam in the metaphorical crowbar and start wiggling.
And that’s where USTelecom begins. “So long as this Commission classifies broadband internet access as a ‘common carrier service,'” the petition opens, “it should ensure technological neutrality and avoid consumer confusion with that of the Federal Trade Commission, under which most participants in the internet ecosystem operate.”
That’s the beginning of the old, common argument against the ISP privacy rule, the complaint that it’s not fair to ISPs if edge providers — internet companies like Facebook and Netflix — only have to abide by the FTC’s privacy rules but landline and mobile internet companies get treated like landline phone companies always have been.
But USTelecom then goes further, saying that “this Commission” — meaning, the FCC about to kick off under new leadership, instead of departing chair Tom Wheeler’s consumer-friendly version — should take the opportunity to “now grant reconsideration to align the two regimes.”
USTelecom’s grounds for asking the FCC to reconsider its previous decisions revolve around “two basic errors:” not running a cost-benefit analysis of its findings, and “ignoring the record facts” about what ISPs do and don’t (or can and can’t) actually know. Those are criticisms that FCC commissioners Ajit Pai and Michael O’Rielly have been sympathetic to and repeatedly echoed while the FCC crafted, debated, and ultimately adopted the privacy rule.
And as Pai is fairly likely to become the next FCC chair in the coming weeks, his stance carries a great deal of weight.
USTelecom, though — again, echoing statements previously made by both Pai and O’Rielly — then goes one step farther. “Although this petition focuses on the factual and policy-oriented shortcomings of” the privacy rule in question, it writes, “USTelecom preserves all legal arguments that it and others have made” previously. And that includes the argument that “the Commissions reclassification of broadband internet access services under Title II was unlawful and that Section 222 [of the Communications Act] is thus irrelevant to those services.”
As promised, most of USTelecom’s petition focuses on the details of the 2016 privacy rule. But it does briefly revisit the reclassification issue near the end, taking for granted that reclassification was FCC overreach. “The Commission erred in reclassifying broadband internet access in 2015 as a common carrier service, thereby stripping the FTC of [enforcement] authority hit had exercised for the prior two decades,” the petition reads. “USTelecom thus urges the Commission to reverse that classification decision and remove this impediment to the FTC’s authority. In the process, the Commission will necessarily acknowledge that ISP privacy practices are not subject to section 222, which applies only to ‘telecommunications carriers.'”
It seems likely that a Pai-led, majority-Republican FCC would be sympathetic to reconsidering and revising the privacy rule for exactly the reasons that USTelecom and others (USTelecom was in first, but it is not alone) are requesting. And if the privacy rule falls, then the legal logic underpinning it — the 2015 Open Internet Order — is likely to go next.
In addition to petitioning the FCC to overturn the privacy rules, opponents of the regulation can ask lawmakers to use the Congressional Review Act to roll the rule back.
The Review Act allows Congress to take a second look at all recently finalized major rules. If lawmakers believe a rule should be rolled back, they can issue a resolution saying so. If the President agrees, the rule can then be rolled back. This process has been attempted a number of times since the Review Act was created in 1996, but it’s only been used successfully once.
Since the FCC’s privacy rule was only finished weeks before the November elections, it appears to fall well within the window for the Review Act.