This post was originally published on June 11, 2015.
House Republicans have launched an attack on the FCC’s Open Internet Rules through provisions tucked into a 156-page funding bill that was published by the House Appropriations Committee yesterday and approved by the Financial Services Subcommittee today. The full House Appropriations Committee might vote on the bill as early as next week. The Open Internet Rules are set to take effect on Friday, after a year of public debate where millions of Americans called for meaningful net neutrality rules. The rules enjoy broad support among Americans, including a majority of Republicans.
The GOP add-ons to the appropriation bill threaten to undo the Open Internet Rules through the backdoor. Specifically, the bill prevents the FCC from implementing or enforcing the Open Internet rules until all court cases challenging the rules have been decided. Thus, the bill leaves Internet users and providers of online content, applications and services without protection while the appeals wind their way through the courts – a process that could take years. In the meantime, Internet service providers like Verizon, AT&T or Time Warner that connect users to the Internet would be free to block any content, service or application they want. They could slow down selected applications, speed up others, or charge application or content providers like Netflix or Spotify to be in the fast lane. In effect, the bill creates a universe in which network neutrality rules – and the open, deliberative process that generated them – never happened.
The Committee Republicans are side-stepping the carefully calibrated process that Congress itself has set up to allow parties that disagree with administrative decisions to seek a remedy. Under administrative law, parties that want to prevent enforcement of an order while it is being appealed can ask the appellate court to “stay” the order. The Court of Appeals for the D.C. Circuit is currently considering a request by ISPs to do just that and stay a subset of the rules. The power to grant a stay belongs to the courts, not to Congress.
Moreover, the bill would limit the FCC’s ability to implement and enforce the Open Internet rules even if the agency wins in court. The bill strips the FCC of any power to regulate ISPs’ prices, fees, and data caps, regardless of the outcome of the court cases. This would prevent the FCC from ever addressing controversial practices like zero-rating – exempting certain applications from users’ monthly data caps. The Open Internet Order left decisions over the legality of zero-rating and discriminatory pricing to later case-by-case adjudications under the general conduct rule.
The bill represents a dangerous power-grab that undermines the judicial process and disregards the will of the American people. Congress should let the Open Internet Rules take effect and respect the judicial processes already in place for opponents of the rules to voice their concerns.
The preceding is republished on TAP with permission by its author, Barbara van Schewick, Director, Stanford Center for Internet and Society (CIS) and Associate Professor of Law at Stanford Law School. “House Appropriations Bill Threatens to Undo Open Internet Rules Through the Backdoor” was originally published June 11, 2015 on Professor van Schewick’s CIS blog.
Note: Since the publishing of this post by Professor van Schewick on June 11th, the House Appropriations Committee did approve on June 17th the Fiscal Year 2016 Financial Services Bill which prohibits the FCC from implementing the net neutrality order until certain court challenges are decided (see Section 630).