On February 26, the Federal Communications Commission will vote 3-2 to regulate broadband Internet providers as common carriers. The decision will be the culmination of nearly a decade of work by net neutrality activists seeking to subject Internet providers to rules written eighty years ago to tame the Bell telephone monopoly. It will also effectively thwart the proposed Thune-Upton bill in Congress that would accomplish net neutrality without radically altering the law governing cyberspace.
But these advocates would be well-advised to hold off celebrating. The FCC’s first attempt at net neutrality rules, in 2010, did not become effective until eleven months after the agency’s 3-2 vote. The impending reclassification decision likewise faces several procedural hurdles that will delay its implementation—perhaps permanently.
Once approved, the order faces two immediate bureaucratic hurdles. First, it must wait at least sixty days (and likely longer) for approval from the Office of Information and Regulatory Affairs (OIRA), an obscure-but-powerful agency located within the Office of Management and Budget at the White House. OIRA assesses the paperwork burden that the new rules will impose on the public. Once approved by OIRA, the FCC will publish the rule in the Federal Register, which triggers another sixty-day waiting period during which Congress may attempt to nullify the rule by passing a resolution of disapproval under the Congressional Review Act. Like a high-stakes game of legislative chess, the House and Senate may move to block the FCC, only to find themselves blocked in turn by a presidential veto that they likely lack the votes to override.
But bureaucracy and politics are not the only obstacles to implementation. Publication in the Federal Register also serves as the starting gun for judicial review. Numerous parties affected by the order will file petitions asking the court to overturn the FCC’s decision. If petitions are filed in multiple courts, a lottery will determine which circuit will hear the challenge—though some litigants may seek to transfer the case to the DC Circuit, which has a reputation for engaging in more critical review of agency action and has twice invalidated the FCC’s previous attempts to regulate Internet providers.
Importantly, a pending court challenge does not automatically prevent the agency from enacting the rule. But the parties may ask the court to stay the order pending the outcome of the appeal. Requesting a stay is risky, as it forces the court to consider the merits before the case is fully briefed, meaning a denial could create some headwinds for the appeal. Perhaps for this reason, opponents did not seek a stay when challenging the FCC’s previous net neutrality effort. But a stay is more likely this time given the higher stakes involved with reclassification as common carriers.
To decide whether a stay is warranted, the court will consider the challengers’ likelihood of success based on the merits of the case, whether they will suffer irreparable harm absent a stay, whether issuing a stay will irreparably harm others, and the public interest. The challengers will offer a preview of their legal arguments: that the agency lacks legal authority to treat broadband providers as telephone companies and failed to follow the required procedures. They will also emphasize the significant costs associated with reclassification as common carriers, and the effect this reclassification will have on the Internet’s evolution. In response, the FCC will argue that delaying implementation of net neutrality will harm consumers. But these concerns may ring hollow, given that every major player already complies with net neutrality voluntarily and Comcast, the nation’s largest broadband provider, is required to implement net neutrality even without the order, as a condition of its earlier acquisition of NBC. If the court grants the stay, the order cannot take effect while the case is pending.
Obviously it is far too early to predict how this timeline will unfold. But one thing we know for certain. Legally, nothing will change on February 26, and probably not for at least several months afterward. The only event guaranteed to happen after the Commission’s vote is an expensive, multi-front battle in Congress and in the courts to overturn the agency’s action. The agency will expend significant resources and political capital to defend a decision that may be stayed pending appeal. And in the end, the agency risks being told—for the third time in five years—that its efforts to regulate broadband providers goes beyond the scope of its statutory authority.
Given this delay, the costs of litigation, and the risk of another failure in court, one wonders why the agency has not simply accepted the olive branch likely to be extended by Congress. The Thune-Upton bill would create binding net neutrality rules against broadband providers—rules that go beyond those that the FCC attempted unsuccessfully to craft itself in 2010. These rules prohibit broadband providers from blocking websites, throttling network traffic, or engaging in paid prioritization. But President Obama insists he will veto the bill, and the FCC will not wait for Congress to act.
Thune-Upton would give the FCC what it has lacked in this battle: explicit statutory authority over broadband and clear congressional guidance regarding how to use that authority. And it would do so without attempting to shoehorn Internet providers into an obsolete set of rules written for a different time and a different industry, taking effect immediately upon the president’s signature. If the president and the FCC believe we must implement net neutrality as quickly as possible, they should work with Congress rather than undertaking the longer and riskier path of freelancing at the edge of the agency’s statutory authority.
Lyons, a visiting fellow at the American Enterprise Institute’s Center for Internet, Communications, and Technology Policy, is an associate professor at Boston College Law School where he specializes in telecommunications and Internet regulation.