A flurry of activity will follow the plan from U.S. Federal Communications Commission Chairman Tom Wheeler to reclassify broadband as a regulated public utility as the foundation for new net neutrality rules.
Wheeler’s plan would reclassify broadband from a lightly regulated information service to a more regulated telecommunications service under Title II of the Telecommunications Act, reversing the FCC’s broadband policy for the past decade. Still, Wheeler’s plan has the agency forbearing from most traditional telecom regulations under Title II, including rate regulations, contributions to the FCC’s Universal Service Fund, and requirements to share their networks with competitors.
So what happens now? On Thursday, Wheeler will release his proposal to his four fellow commissioners, and commissioners will have three weeks to suggest changes to the chairman. The FCC’s two Republican commissioners will probably make several suggestions that don’t make it into the final proposal.
Then on Feb. 26, the FCC is scheduled to vote on Wheeler’s proposal during an open commission meeting. Expect the commission’s three Democrats to vote for it, and the two Republicans to vote against it.
Afterwards, in a matter of weeks, Republicans in Congress will push for passage of their own bill that would create a lighter version of net neutrality rules. The bill would also prohibit the FCC from reclassifying broadband under Title II, and stop the agency from creating any new net neutrality rules.
Republicans have a solid majority in the House of Representatives, meaning a vote on their bill could happen quickly, maybe as soon as March. The bill would pass easily in the House, but would likely get held up in the Senate, where Democrats have enough votes to filibuster it. Even if the bill would somehow pass through the Senate, it would face a near certain veto from President Barack Obama, who has called on the FCC to reclassify broadband under Title II.
Later on, within a year, would come the lawsuits. A handful of broadband providers have all but promised to file lawsuits against the FCC if the agency reclassifies broadband as a regulated service. A lawsuit would have to wait until the FCC’s new rules are published in the Federal Register.
After the FCC passed its 2010 net neutrality rules, approved by commissioners in December of that year, the official document was published in the Federal Register 10 months later. Verizon Communications then refiled a lawsuit after a court told the company it had to wait for publication.
For this round of net neutrality rules, likely plaintiffs in a lawsuit would be AT&T and, again, Verizon, although the latter company may be a little gun shy after its last lawsuit didn’t achieve the intended result. The U.S. Court of Appeals for the District of Columbia Circuit threw out a large portion of the FCC’s 2010 rules in early 2014, saying the agency based the rules on a faulty legal analysis, but judges pointed the agency to sections of the Telecom Act that it could base new rules on.
Comcast and Time Warner Cable, two of the largest wired broadband providers in the U.S., aren’t likely to challenge the rules because they are also asking the FCC for permission to merge.
It’s unclear how the appeals court would rule on broadband reclassification. Critics say the FCC has not made a good argument for the need to reverse a decade of light regulation, but FCC officials say they are on solid legal ground. The appeals court, in its 2014 rejection of the FCC’s 2010 rules, largely ignored reclassification as an option, instead pointing the agency toward a section of the Telecom Act that allows the agency to encourage broadband deployment.
However, the U.S. Supreme Court in its 2005 Brand X decision involving the FCC, ruled that administrative agencies can change their policies if they come up with good reasons to do so.
The Brand X case, ironically, gave the FCC the authority to deregulate broadband and classify it as an information service. In that case, the Supreme Court ruled that the agency had reasonably interpreted the Telecom Act when classifying cable broadband as a lightly regulated service, but the court majority also ruled that lower courts must defer to a reasonable interpretation of the Telecom Act by the FCC.