On December 14, 2017, the Commission voted 3-2 as expected along party lines to adopt the Internet Freedom Order that had been circulated as a draft on November 22, 2017. When effective, the new order will reverse the Commission’s 2015 Open Internet Order. Based on the Commissioners’ comments at the open meeting the new order should be substantially the same as the draft analyzed in our November 30, 2017 advisory, with one exception: Commissioner O’Rielly had asked to remove references to Title III in the discussion of the authority for adopting transparency requirements for wireless ISPs. At the meeting Commissioner O’Rielly said “I do not believe that the provisions of title three cited in the circulated version of the order should be invoked. I am relieved they have been removed from the item at my request.” In addition, in the week before the meeting the FCC announced it was signing an MOU with the FTC for ISP privacy enforcement so the order may be amended to reflect that. Accordingly there may be some time from today’s vote until final text is released. We will provide a further update at that time.
UPDATE: The Commission released the final text of the Internet Freedom Order late Thursday January 4. As reported previously, Commissioners Rosenworcel and Clyburn dissented, with Commissioner Clyburn issuing a 9-page dissent.
There were numerous edits to the November draft order previously analyzed in our November 30, 2017 advisory. In addition to adding in cites to comments and ex partes since the time of the draft, the Commission changed the privacy section (with respect to the FTC’s renewed authority and the pending Ninth Circuit en banc proceeding) and added new paragraphs enhancing the discussion of preemption in order to bolster defenses against states moving to impose the repealed Net Neutrality and privacy rules at the state level, as California, New York and others are seeking to do. The Commission continues to rely on the premise that its decision to give deregulatory leeway to market forces, subject to FTC oversight, is just as preemptive of state action as a decision to adopt comprehensive regulations. But at the same time, at Commissioner O’Reilly’s request, the final order removed some of the citations for their authority on transparency (removing the references to Title III – see blog above), largely to reduce any basis for the Commission to expand regulation at a later time. The final order also revised and added new text to bolster its determination to end regulation of internet traffic exchange, finding “that market dynamics are likely to mitigate the risk that ISPs will block, degrade, or deprioritize specific edge providers’ traffic.” The final order adds text explaining its earlier rejection of calls to postpone the December 14 vote due to millions of “fake” comments. And the order now ties the timing for seeking reconsideration or filing judicial challenges to publication in the Federal Register, which may take a few more weeks, but the new rules themselves will not be effective until OMB approval of revised information collection duties for ISPs, which some say could take months.
In related developments, Senator Blackburn introduced the Open Internet Preservation Act that would prohibit blocking and throttling, but not paid prioritization. Senator Markey plans to introduce a Congressional Review Act resolution to undo this final order. It is unlikely that such CRA repeal would become law, but it may stoke the net neutrality issue for political voting purposes as the mid-term elections approach.