Three weeks later, FCC finally issues net neutrality repeal order

After a holiday-filled three weeks where net neutrality proponents lamented its repeal at a December FCC meeting, the agency has finally issued its official order returning ISPs to their original Title I classification of information services.

The bulk of the ruling is as follows:

Declaratory Ruling

  • Restores the classification of broadband Internet access service as an “information service” under Title I of the Communications Act—the classification affirmed by the Supreme Court in the 2005 Brand X case.
  • Reinstates the classification of mobile broadband Internet access service as a private mobile service.
  • Finds that the regulatory uncertainty created by utility-style Title II regulation has reduced Internet service provider (ISP) investment in networks, as well as hampered innovation, particularly among small ISPs serving rural consumers.
  • Finds that public policy, in addition to legal analysis, supports the information service classification, because it is more likely to encourage broadband investment and innovation, thereby furthering the goal of closing the digital divide and benefitting the entire Internet ecosystem.
  • Restores broadband consumer protection authority to the Federal Trade Commission (FTC), enabling it to apply its extensive expertise to provide uniform online protections against unfair, deceptive, and anticompetitive practices.

Report and Order

  • Requires that ISPs disclose information about their practices to consumers, entrepreneurs, and the Commission, including any blocking, throttling, paid prioritization, or affiliated prioritization.
  • Finds that transparency, combined with market forces as well as antitrust and consumer protection laws, achieve benefits comparable to those of the 2015 “bright line” rules at lower cost.
  • Eliminates the vague and expansive Internet Conduct Standard, under which the FCC could micromanage innovative business models.

Order

  • Finds that the public interest is not served by adding to the already-voluminous record in this proceeding additional materials, including confidential materials submitted in other proceedings.

The order is posted on the FCC site, along with official statements by the five commissioners. Chairman Ajit Pai, Commissioner Michael O'Rielly, and Commissioner Brendan Carr, all Republicans, voted in favor of repeal. Democratic Commissioners Jessica Rosenworcel and Meghan Clyburn voted against the repeal.

It took a bit longer for the order to become finalized, and it is unclear at this point how much the final order differs from the near-final draft released three weeks before the December 14 commission meeting. Since then, lawsuits have been threatened, and legislation proposed, so the extra time may have been used to make sure everything was in proper order in case of a legal challenge.

Of course, the order does not take effect until 60 days after it appears in the Federal Register. Now that it is out, net neutrality is one step closer to officially being dead.

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