On December 14, a majority of FCC commissioners voted to gut net neutrality protections, limiting the power of ISPs to block, throttle, degrade or assign preference to some online content and services over others. This 3-2 vote to roll back strong, enforceable net neutrality protections was made in the face of widespread protests. Here is where we are today.
This FCC decision opens the door for very different consumer experiences of the internet, especially within libraries for the patrons and communities they serve. For now, these changes are likely farther in the future. The country’s largest ISPs have told customers they will not see a change in how they experience the web (although past records don’t look bode well). With so many eyes on them right now and the certainty of a legal challenge, it is unlikely these companies will take any immediate action that will draw scrutiny. That said, significant changes are almost certain. In particular, ISPs could create faster delivery lanes for their own content (since many of these companies have media interests). This would make it harder for third-party or competing content (like content created by and in libraries) to reach people with the same quality of service.
Commissioners Mignon Clyburn and Jessica Rosenworcel dissented in last week’s decision and detailed some of their concerns about the potential harms to the public interest and the internet ecosystem as we know it.
As we’ve noted before, the FCC vote is not the final word. There are a several avenues supporters of net neutrality could take:
- Right after the vote, members of Congress announced their intent to attempt to nullify the FCC’s actions. The Congressional Review Act (CRA) gives Congress the ability and authority to do this; the CRA allows Congress to review a new agency regulation (in this case, Pai’s “Restoring Internet Freedom” Order) and pass a Joint Resolution of Disapproval to overrule it. This would repeal last weeks FCC order, restoring the 2015 Open Internet Order and keeping net neutrality protections in place. This Congressional action would be subject to Presidential approval. Senator Ed Markey (D-MA) and Congressman Mike Doyle (D-PA) have both announced their intentions to introduce resolutions to overturn the FCC’s decision using the authority granted by the CRA and Democratic leadership in both Houses have urged their colleagues to support this move. Rep. Marsha Blackburn (R-TN) plans to introduce legislation to codify net neutrality rules. Sen. Bill Nelson (D-FL), the top Democrat on the Senate Commerce Committee, is also calling for Congress to preserve the net neutrality rules. Timing: Congress will have 60 legislative days from when this order is published in the Federal Register. That could be about 5 or 6 months. Other legislation could take even longer.
- The FCC will be sued about this decision. Just hours after the vote, 18 state attorneys general announced they would be taking the FCC to court. “There is a strong legal argument that with this action, the federal government violated the Administrative Procedure Act,” Washington state Attorney General Bob Ferguson said in his statement.
And advocacy groups Free Press and the National Hispanic Media Coalition have also announced they will take the Commission to court, disagreeing with the FCC on their interpretation of the Communications Act. They argue the FCC did not justify its action with any real facts for abandoning Title II classification for broadband ISPs.One important thing to remember is that going to court does not mean a judge will grant an injunction on the rules. And without an injunction, ISPs can still move forward with opening up internet fast lanes while the legal challenges make their way through the courts. Timing: We will know more after the rules are published in the Federal Register (probably any time in the next 60 days) and as cases are announced.
- In addition to legal action, several states and localities have indicated they would like to hold ISPs accountable for ensuring a neutral net for consumers in their areas. It is still very early. Some suggestions, like those from the Governor of Washington, are not yet formal legislative proposals. It is worth noting the FCC order specifically pre-empts state and local legislation, but it is not clear yet how expansive this pre-emption will be and whether it will pass legal muster. We will be watching these proposals closely and will update members about which pieces are moving and comport with the strong protections and the principles we have supported. Timing: Many state legislatures introducing bills for their coming sessions, so we expect to see more motion over the next few months.
What ALA is Doing and What You Can Do
ALA is reviewing its options and the best course of action with regard to legal challenges to last week’s vote. In the past, we have submitted extensive friend of the court briefs.
We are also working with allies to encourage Congress to overturn the FCC’s egregious action. You can email your members of Congress today and ask them to use a Joint Resolution of Disapproval under the CRA to restore the 2015 Open Internet Order protections.
ALA will continue to update you on the activities above and other developments as we continue to fight to preserve a neutral internet.
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