WASHINGTON D.C. — Yesterday, the FCC published the official text of the Restoring Internet Freedom Order approved by the Commission on December 14. In November, Chairman Pai had published a draft order — unlike his two predecessors, who revealed text only after the FCC’s vote. As TechFreedom explained in December, the Order returns Internet regulation to the light-touch regulatory regime that, until recently, commanded bipartisan support.

“There are no big surprise changes in the final order,” said Berin Szóka, President of TechFreedom, based on a redline conducted by TechFreedom. “The FCC seems mainly to have added footnotes to address issues raised by last minute ex parte filings. Perhaps most importantly, the key ordering clause (¶ 354) now makes absolutely clear that nothing in the Order will go into effect until the after the Order is published in the Federal Register — which will likely specify a window of 60 days before the RIFO goes into effect. This removes any need for anyone to bring a lawsuit earlier to preserve their ability to sue. It also means any such suit would be dismissed as premature, just as was US Telecom’s initial challenge in 2015.”

“Still, don’t be surprised if someone does sue immediately, just to keep the cycle of outrage alive, and donations flowing in,” continued Szóka. “For the same reasons, Congressional Democrats will keep beating the drums about using the Congressional Review Act to reverse the Order — and forever lock-in railroad-style regulation of the Internet. Never mind everything they said last year about how inappropriate it was to use the CRA to block the FCC’s unnecessary 2016 Broadband Privacy Order — or that there’s zero chance of their CRA passing. They need a pretext for refusing to propose substantive legislation of their own — which no Democrat has done in nearly seven years, while Republicans have twice put offers on the table.”

“What’s really disappointing here is that Commissioners Clyburn and Rosenworcel chose neither to respond to the legal arguments made in the Order nor to help define what Congress needs to do to resolve this fight,” lamented Szóka. “In 2015, it took then-Commissioner Pai 67 pages to explain why we shouldn’t trust the FCC to regulate the Internet; to which Commissioner O’Rielly added a 17 page dissent. By contrast, Commissioner Clyburn’s dissent runs nine pages, and Rosenworcel’s, just three. Both fixate on the millions of emotionally charged comments filed in the docket about the importance of net neutrality — as if those had any bearing on the complex legal questions at hand. They don’t. Administrative proceedings simply aren’t plebiscites.”

“Only in passing did Clyburn touch on a key substantive issue facing Congress: universal service,” concluded Szóka. “Of course, she didn’t mention that Rep. Marsha Blackburn (R-TN) introduced legislation shortly after the FCC’s vote to assure that the FCC could spend USF money to subsidize broadband as a Title I information service. And all of Clyburn’s complaints about a shrinking contribution base for USF could be directed at the Wheeler FCC, too: while Title II reclassification allowed the FCC to tax broadband for USF, Wheeler never did so because it would be unpopular. Still, Clyburn’s right: Congress has to do something about both sides of USF. Ideally, general revenues should fund USF, because USF contributions, applied equally to all phone bills, are the most regressive taxes in America. But the only way Congress will ever address the funding side of USF is in exchange for finally putting the program on a budget. Clyburn should be leading this charge, but is too busy trying to score political points.”

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Szoka is available for comment at media@techfreedom.org. For more information on the issue, take a look at some of our recent work:

  • Don’t Buy the Hype: Net Neutrality Is On Firmer Ground Today than Yesterday, our press release on the passing of Chairman Pai’s “Restoring Internet Freedom” Order
  • Republicans Propose Net Neutrality Legislation Again. Will Democrats Engage? Our press release on Marsha Blackburn’s net neutrality bill
  • Only Congress, not the FCC can fix  net neutrality, Szóka’s Op-Ed in WIRED
  • Tech Policy Podcast Episode with FCC Chairman Aji Pai
  • Tech Policy Podcast Episode with FCC Commissioner Brendan Carr
  • Pai Brings Unprecedented Transparency to Open Internet Proceeding, Graham Owens’ Blog Piece
  • How net-neutrality advocates would let Trump control the Internet, Szóka’s Op-Ed in the Washington Post

The Feds lost on net neutrality, but won control of the Internet, Szóka’s Op-Ed in WIRED

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