As the June 12 effective date for the FCC’s new network neutrality rules approaches, significant questions remain about what will happen next. This uncertainty is likely to remain into 2016, as activity continues in the courts, at the FCC, and in Congress.

The deadline for appeals is June 12, but the most important parties – the cable and telephone industries, and wireless Internet service providers (“ISPs”) – all filed in April. The key issue now is whether the Court of Appeals will grant the industry’s stay request. This request focuses on the FCC’s decision to reclassify broadband as a common carrier service, and the impacts of that decision, including how it affects interconnection, the cost of pole attachments for cable operators, and the fees and taxes owed by ISPs. The request does not ask the court to stay the basic network neutrality rules, including disclosure of terms and conditions, non-discrimination, and the prohibition on “Internet fast lanes.”  Thus, even if a stay is granted, these rules should remain in place while the appeal is pending.


The parties that requested the stay also asked for expedited action (which the FCC has not opposed); even with expedited action, it likely will take until late 2015 to reach a decision. Without expedited treatment, a decision would be unlikely until the middle of 2016. Regardless of what the appeals court decides, an appeal to the Supreme Court is possible. The Supreme Court has shown an interest in Internet-related cases, so it may be more likely than usual that this case will end up being decided there.

There are significant questions about how to comply with some of new rules. In some cases, the FCC promised to provide guidance, particularly on how to comply with the new disclosure requirements and the privacy obligations that resulted from the decision to reclassify broadband service. However, the process for providing guidance has only begun.

The FCC said it would create a safe harbor for meeting the disclosure requirements, which would describe the necessary disclosures. The FCC has asked its Consumer Advisory Committee to make a recommendation for the safe harbor, but the recommendation is not due until October 15.

The FCC also promised new privacy rules for broadband service. It held a workshop on Internet privacy issues on April 28, and on May 20 issued general guidance on privacy obligations, but has not proposed rules.  The guidance says that the FCC will “focus on whether broadband providers are taking reasonable, good-faith steps to comply . . . rather than focusing on technical details,” but provides no specifics on how to meet that  standard.  It could take a year for the FCC to adopt broadband-specific rules, and the uncertainty as to how to protect customer privacy will continue until that time.

In many areas where there is uncertainty, the FCC does not plan to release any guidance. For instance, the FCC will address complaints about interconnection on a case-by-case basis, and has said only that interconnection should be provided on “just and reasonable” terms.

The network neutrality controversy also may affect the FCC’s universal service program. In particular, the FCC likely eventually will require universal service contributions from broadband services.

After years of hostility to any Internet regulation, many Republicans now support targeted legislation to adopt network neutrality principles while limiting the FCC’s ability to adopt additional rules governing ISPs. While several bills have been introduced, none have been considered in committee, let alone reached the floor of either chamber. The most significant question about these bills is whether legislation can satisfy President Obama and the Democrats and gain sufficient support among Republicans to pass. It may be difficult to balance the Republican interest in limiting the FCC’s authority with the Democrats’ interest in ensuring that the FCC can adapt the rules if circumstances change. The likelihood of legislation also may be affected by activity at the Court of Appeals. If the stay request is denied, the chance that Republicans will compromise with the Democrats may increase.

Congress likely will consider a “resolution of disapproval,” a legislative mechanism to overturn agency rulemaking decisions. Resolutions of disapproval have been introduced in the House and the Senate. While a resolution of disapproval could pass the House, and possibly the Senate, it almost certainly would not have enough votes to override a Presidential veto.  It also is possible that Republicans will attempt to reverse the FCC decision through the appropriations process.

Harrington is special counsel in the Regulatory Communications practice at the law firm Cooley LLP.