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Today, the Federal Communications Commission voted 3-2 in favor of a controversial proposal to regulate the internet as a public utility, similar to telephone calls. The vote came as expected, down party lines with the three Democrats supporting and the two Republicans opposed. The decision is no surprise, but it leaves us with two questions that need to be answered: What does this mean, and where do we go from here?
First, it means a lot. Title II of the Telecommunications Act, under which internet service providers will now be classified, along with section 706 of the same Act, grant the FCC broad powers over private companies. Among the things the FCC will allowed to do are the following:
With respect to the last two points, the FCC claims that they will use “forbearance,” meaning they will not actually enforce them. But history teaches us that the government rarely demands powers it has no intention of using, and any respite from these rules is almost certain to be temporary.
While the FCC’s plan does not directly regulate content, the Federal Election Commission (FEC) has suggested that political speech on the internet should be regulated. No that the internet will be consider a public utility, there is little to stop efforts to impose broader content requirements, reminiscent of the infamous Fairness Doctrine.
The scope of these new regulations is well summed up in this tweet from Republican FCC Commissioner Ajit Pai:
The answer to the second question is a little more complex. While the FCC has made its decision, there are still three ways that we could reverse the decision and take back a free internet. The ways to do this are executive, legislative, and judicial.
The judicial solution would be to challenge the FCC in court. In 2010, a federal appeals court struck down an earlier attempt by the commission to implement Net Neutrality, and even now lawsuits are being mounted, so there is a chance that the decision will be ruled unconstitutional. However, no lawsuit can proceed until the new rule is published in the federal register, which will not happen for some months, so this will be a long and time-consuming process.
The executive solution will take even longer. Since FCC commissioners are appointed by the executive branch, a Republican president in 2017 could conceivably install new regulators, at which point the agency could reverse its interpretation of the Telecommunications Act. Again, this is a long-term solution.
Finally, Congress could act legislatively to amend the Telecommunications Act to specifically preclude the FCC’s interpretation. Legislative fixes have already been attempted, but of course, this would also require a Republican president to sign the legislation into law.
In short, the battle for internet freedom lives on, but the next step is going to be a long, slow one that will take dedication and perseverance for years to come.