The game clock is now running on the Federal Communications Commission’s decision to reverse broadband’s status as a common carrier service and end network neutrality rules. Sorta. The decision approved by commissioners in December was published in the Federal Register yesterday. That means court challenges can begin – an earlier appeal by state attorneys general was largely symbolic and presumably will be refiled. There’s a ten day procedural window for everyone to pile on in the federal appeals court of their choosing, after that the challenges will probably, but not certainly, be consolidated into a single case that’ll be heard in Washington, D.C. Final deadline to file an appeal is two months out. You can find the details of how it works in an excellent blog post by Public Knowledge’s Harold Feld.
It will be an uphill battle to convince the courts that the FCC made the wrong decision. When congress gives an agency the job of choosing among policy options, past court rulings – including in the cases brought against the FCC’s 2015 net neutrality decision – generally defer to that agency’s expert judgement. There’s a stronger argument to be made that the FCC didn’t follow proper procedures in making its decision this time around, and that’s likely where the main legal battle line will be drawn.
Publication in the Federal Register also means that congress has two months to exercise its authority to overturn the FCC’s decision. There might be enough support for doing so in the U.S. senate, but agreement by the house of representatives is a long shot. The necessary concurrence by president Donald Trump is an even longer shot, to say the least.
The catch is that we still don’t know when the FCC’s decision will take effect – for what it’s worth, broadband is still a common carrier service and theoretically providers still have to abide by the erstwhile bright line rules: no blocking, no throttling, no paid prioritisation. The hammer won’t come down until after the white house signs off on some of the details and posts a second notice in the Federal Register.
FCC’s “Restoring Internet Freedom” order as published in the Federal Register, 22 February 2018