With the December 14th repeal of net neutrality, it is tempting to think that the United States Federal Communications Commission (FCC) has put an end to the net neutrality debate once and for all. However, such an interpretation is both premature and misinformed. Despite the FCC deciding by a 3-to-2 party-line vote to repeal the net neutrality provisions, proponents of a repeal should not necessarily begin celebrating. There are still a few hurdles to clear before net neutrality can be declared well and truly dead. Until then, users should not expect any significant changes to the internet to occur.

The most immediate hurdle for the FCC to clear will be the upcoming legal challenges. Immediately after the decision, New York attorney general Eric Schneiderman declared that he would lead a lawsuit to prevent the repeal[1]. His lawsuit, which will be joined by other states, will argue that the decision process was corrupted by millions of fake public comments left on the FCC website in support of the repeal. However, this argument may run into trouble as the FCC can reasonably claim to have disregarded blatantly fake or repetitive comments. There has also been some talk of states taking up the FCC’s mantle and regulating the internet themselves, although the FCC would fight this tooth and nail.

A more credible legal argument can be made based on the federal requirement that agencies not make “arbitrary and capricious” decisions. With the now-repealed net neutrality rules having only been passed in 2015, the FCC is vulnerable to a charge of having acted capriciously. However, the burden of proof will rest on net neutrality proponents: federal agencies are allowed to change their minds about previous regulation[2].

Another attack on the appeal may come through the United States congress. Congress could use the Congressional Review Act to undo the regulation, although this will be difficult with Republicans in control of all branches of the federal government. Despite the fact that – according to a Morning Consult poll – a majority of Republican voters support net neutrality[3]it is still seen as a Democratic issue. Still, several Republican lawmakers have already opposed the FCC’s change[4] and this could represent an avenue to a potential compromise.

Even if the repeal survives legal and governmental challenges it is unlikely internet service providers (ISPs) will make any substantial changes in the near future. Making drastic changes would likely be extremely unpopular with consumers and could galvanize opposition to the repeal. Additionally, until the repeal has been fully cemented into law it is unlikely ISPs will want to risk making substantial structural changes lest net neutrality provisions be re-instated.

Short-term the FCC has struck a significant blow in opposition of net neutrality. In the longer-term, it is unclear whether the repeal will hold up in court, be replaced by a different law, or simply not have much of an impact.  Consumers, content providers, and ISPs will surely continue to watch the drama unfolding across the country with bated breath.

Author: Thomas Menzefricke


[1] Looper, Christian de. Net neutrality in 2018: The battle for open internet is just beginning. TechRadar, TechRadar, 27 Dec. 2017, www.techradar.com/news/net-neutrality-in-2018-the-battle-for-open-internet-is-just-beginning

[2]Finley, K. (2017, December 14). The FCC Just Killed Net Neutrality. Now What? Retrieved December 29, 2017, from https://www.wired.com/story/after-fcc-vote-net-neutrality-fight-moves-to-courts-congress/

[3] Graham, E. (2017, November 29). Majority of Voters Support Net Neutrality Rules as FCC Tees Up Repeal Vote. Retrieved December 29, 2017, from https://morningconsult.com/2017/11/29/strong-support-net-neutrality-rules-fcc-considers-repeal/

[4] Congressional Republican opposition to Pai’s net neutrality rollback mounts. (2017, December 12). Retrieved December 29, 2017, from https://demandprogress.org/congressional-republican-opposition-to-pais-net-neutrality-rollback-mounts/