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In a controversial change that will impact the flow of information and content online and almost certainly be challenged in court, the Federal Communications Commission has voted along party lines to adopt a proposal titled Restoring Internet Freedom Order, otherwise known as a repeal of the landmark net neutrality protections.
The FCC on Thursday voted 3-2 on to accept chairman Ajit Pai’s proposal to take broadband out from under Title II of the Telecommunications Act and sweep away measures that prohibit ISPs from blocking and throttling content. As a result, large telecoms will have more latitude to discriminate against content, although Comcast and Verizon are among those who have pledged not to do such a thing.
Pai has positioned the move as a return to light-touch regulation where the government will be forbidden from “micromanaging the internet.” He believes it will also spur investment in broadband development throughout the nation.
Critics worry about the possibility of fast- and slow-lanes, more costs for consumers and disruption to innovation if paying for traffic prioritization becomes a necessity in the new economy.
Promoted to chairmanship by President Donald Trump, Pai has been working throughout the year on the Restoring Internet Freedom proposal along with other rules to loosen media ownership restrictions. He presided over a comment period where tens of millions weighed in — a contentious process many say was corrupted by the presence of bots.
At a Thursday hearing, the commissioners explained their reasoning for voting as they did.
“For those of you out there that are fearful what tomorrow may bring, please take a deep breath,” said Michael O’Rielly, a Republican commissioner who voted for the new rules. “This decision will not break the internet.”
He added, “I for one see great value in the prioritization of telemedicine and autonomous car technology over cat videos.”
Commissioner Mignon Clyburn differed.
“The public can plainly see that a soon-to-be toothless FCC is handing the keys to the internet, at one of the most remarkable, empowering, enabling inventions of our lifetime, over to a handful of multibillion-dollar corporations,” she said, later adding, “What saddens me the most today is that the agency that is supposed to protect you is actually abandoning you. But what I am saying is the agency does not have the final word. Thank goodness for that.”
The vote was taken after an interruption and brief evacuation caused by a security threat.
The relaxed rules mark both a significant retreat as well as a bold advance of federal power. The FCC may be backing off from various anti-blocking and anti-throttling red lines adopted in 2015, but it also is attempting to preempt any states wishing to enact their own policies. The new rules do encourage transparency for large telecoms, and the FCC recently announced an agreement with the Federal Trade Commission to police those who engage in deceptive or unfair practices in relation to web traffic, but that and prospective activism by the Justice Department’s antitrust division will hardly be enough to assuage fears of putting too much power in the hands of a few big ISPs, especially at a time of vertical consolidation in the media industry and the prospect of a big company like AT&T favoring its own content through so-called “zero-rating” practices.
Congress could intervene with its own legislation, but in the meantime, the dispute seems destined for a DC federal court to analyze whether the net neutrality repeal was arbitrary and capricious or rather grounded upon solid cause and adequate reasoning. Over the past few years, federal courts have examined the FCC’s attempts to regulate the internet under the Telecommunications Act and have steered the independent agency’s thinking. A return trip is forthcoming.
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