The U.S. Federal Communications Commission’s net neutrality rules went into effect Friday, after an appeals court denied multiple requests to delay them while the agency faces 10 lawsuits challenging the regulations.
The rules prohibit broadband providers from selectively blocking or slowing Internet traffic and from charging website owners and providers of Web-based services for prioritized traffic. The rules also reclassify broadband from a lightly regulated information service to a more heavily regulated telecom-style service, although the FCC voted to exempt broadband providers from many of those common-carrier rules.
Here are four things to watch for as the rules go into effect and the lawsuits go forward:
What happens now with the rules?
In short, they are now enforced regulations. Most, if not all, U.S. broadband providers aren’t actively engaged in blocking or throttling Web traffic or in charging websites for prioritized traffic, so on that level, broadband customers shouldn’t see much of a change.
Broadband providers will have several new regulations to comply with, and some argue this will increase their costs and hinder broadband deployment and investment. Broadband investment will be one metric to watch over time.
One big change in the rules is a new process for broadband customers and other groups to file complaints over net neutrality violations. That complaint process is now available, but it will be interesting to see whether customers and digital rights groups use it.
Don’t look for a lot of complaints to be filed, said Harold Feld, senior vice president at Public Knowledge, a digital rights group that supports the new rules. The FCC is likely to delay addressing any complaints pending the outcome of the lawsuits, “unless there is something really awful or dramatic happening,” he said by email.
The FCC won’t spend a lot of time, nor require broadband providers to spend time, responding to minor complaints “when the actual question of FCC authority still needs to be decided,” Feld added.
In addition, there are some political considerations. The FCC “does not want to give any credence to the argument that this will produce some sort of open season on small ISPs,” Feld said. “So the FCC is not going to go out there looking to find something to prosecute.”
What does the appeals court ruling against the delay requests mean for the lawsuits?
The answer: It’s hard to tell. Several opponents of the net neutrality rules had hoped that the U.S. Court of Appeals for the District of Columbia Circuit would signal discomfort with the new rules by approving the requests for a stay.
But the reverse isn’t necessarily true. Getting a court to rule in favor of a stay of federal regulations is an uphill climb, because plaintiffs must prove that irreparable harm is likely without the delay. The net neutrality plaintiffs “have not satisfied the stringent requirements” for a stay of the rules, the court wrote Thursday.
Still, opponents of the rules applauded the court’s decision to grant plaintiffs’ requests for an expedited brief filing schedule in the lawsuits. The expedited briefing schedule may indicate that the court sees some potential harm to broadband providers through the rules, said Berin Szoka, president of free market think tank TechFreedom.
So the broadband groups bringing the lawsuits still believe they have a good case. “We are now ready to get to the merits of the case and are confident as ever that we will prevail,” the National Cable and Telecommunications Association (NCTA) said in a statement.
What happens now with the lawsuit?
We’re still many months away from a resolution. The 10 lawsuits against the FCC are now all combined in a single proceeding in the D.C. appeals court, with one case moved from a Louisiana appeals court earlier this week.
Proposed brief-filing schedules from the parties in the combined lawsuit are due June 25. So at this point, the court is talking just about scheduling, not even about the substance of the lawsuits.
What will the broadband groups argue before the court?
Many of the plaintiffs have already laid out their basic arguments against the rules. The broadband groups generally don’t oppose the FCC’s rules against blocking or throttling Web traffic, but they hate the agency’s decision to reclassify broadband as a regulated telecom service.
One of their main assertions is that the FCC didn’t adequately develop a record supporting reclassification of broadband. When FCC Chairman Tom Wheeler first proposed new net neutrality rules in May 2014, he didn’t advocate for reclassification, but advocated for that change early this year. The plaintiffs will argue the FCC collected public comment on Wheeler’s original proposal and didn’t give adequate notice of the shift toward reclassification.
The FCC’s decision to reclassify broadband violates the Telecommunications Act’s definitions of telecom service and information service, the NCTA said in a briefing on the lawsuit earlier this month. The FCC’s net neutrality order also “abandons its longstanding policy and factual findings” for treating broadband as an information service, the group said.
The FCC has defended its decision, noting that it told broadband providers that reclassification was on the table since the beginning of the debate. Agencies have the authority to reverse old regulations if they find good reasons for doing so, the U.S. Supreme Court has ruled.