Regulatory classification

Network neutrality activists have gotten together to fight the nomination of Judge Brett Kavanaugh to the Supreme Court, saying he would put the wishes of big cable and big telecom over the interests of the public. Free Press, Public Knowledge, Fight for the Future, Demand Progress and 20 others have sent a letter to the Senate in opposition. His Senate nomination hearings--in the Judiciary Committee--are scheduled to begin Sept 4, although Democrats are trying to delay them, partly in hopes of regaining the Senate and blocking the nomination themselves. 

Federal Communications Commission Chairman Ajit Pai and his staff are fond of taking to Twitter to assert that, in the just over two months since the repeal of the FCC’s 2015 network neutrality rules took effect, the “Internet remains free and open” — and that opponents’ concerns that unconstrained broadband providers will act in a way that harms consumers and competition are overblown.

In recent years, the Federal Communications Commission has become a microcosm of the political battles in Congress. The Democratic-controlled Wheeler Commission entitled its Net Neutrality Order “Protecting and Promoting the Open Internet.” Not to be outdone, the Republican-controlled Pai Commission that overturned that Order entitled its own “Restoring `Internet Freedom.” And like Congressional pronouncements, Commissioners look to grab headlines with dramatic statements of impending doom if their policies are not enacted.

Verizon slowing California firefighters’ data speeds during a wildfire crisis, but was quick to say, “This situation has nothing to do with net neutrality or the current proceeding in court.” Verizon was throttling “unlimited” customers in less extreme circumstances who hit certain data thresholds well before the Federal Communications Commission repealed net neutrality rules in 2017. But under the rules adopted in 2015, customers had a path to complain to the FCC when they believed throttling was unfair.

During a visit to Utah, Federal Communications Commission Chairman Ajit Pai called for Congress, not his agency, to write “network neutrality” rules regulating businesses that connect consumers to the internet. “We need Congress to set the rules of the digital road,” Chairman Pai said, standing with Rep. Mia Love (R-UT) who made a similar call. Their public comments came after the pair met privately with Utah rural internet providers as part of an FCC outreach on how to extend and improve their services.

On Aug 21, the County of Santa Clara (CA), joined by 22 States and the California Public Utilities Commission, filed its brief supporting network neutrality in the ongoing litigation to protect the open internet. The brief attached testimony and an email thread from the County Fire Chief, Anthony Bowden, describing how—during the worst wildfire in California history—Verizon throttled the Internet connection of a critical emergency response vehicle .  “This throttling has had a significant impact on our ability to provide emergency services.

After a long pre-season in which little else happened other than setting a schedule and format for briefing, August 20, 2018 was Opening Day for the litigation appealing the Federal Communications Commission’s December 2017 network neutrality decision. Two groups of challengers (technically referred to as “petitioners”) filed their briefs Monday evening in the US Court of Appeals for the District of Columbia Circuit.

NCTA: The Internet & Television Association says the Federal Trade Commission needs to take a light-touch approach to regulating the wildly competitive communications marketplace, but apply that touch to everyone in the space.

Attorneys general representing 22 states and the District of Columbia asked a federal court to reinstate network neutrality, saying the Federal Communications Commission failed to properly consider the issues when removing the policy in 2017. In a brief filed Aug 20, the attorneys general argue that the FCC’s decision “will cause [inevitable harms] to consumers, public safety, and existing regulatory schemes” and that the commission “entirely ignored many of these issues” when overturning net neutrality.

Public Knowledge, Mozilla, the Benton Foundation, INCOMPAS and others challenging the Federal Communications Commission's Restoring Internet Freedom order say that was not just bad policy but illegal. That is coming in a brief with the US Court of Appeals for the DC Circuit, which is hearing their challenge to the network neutrality regulation rollback--the deadline for initial briefs from non-government parties is Aug 20.