The Net Neutrality Repeal Will Likely Lead To A Legal Battle That Nobody Wins

12.12.17 2 years ago

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The FCC will, on Thursday, attempt to completely abdicate its role as enforcer of net neutrality. While it’s not a done deal just yet, it seems likely to go through. And according to FCC Commissioner Ajit Pai, it will usher in a new era of competition. According to almost everyone else, what it will actually do is trigger a massive legal sh*tstorm and likely create a vast regulatory headache for everyone from the FCC down to the guy looking at his phone.

What is the FCC doing, in plain terms? It is allowing internet providers to block or slow certain websites, provided they explicitly tell you that those sites are blocked or throttled. They also want to make this lack of regulation pre-emptive: That is, states can’t pass regulation of their own to contradict the FCC’s negative.

  • Let’s start at the beginning, with the FCC’s vote: The FCC first has to vote for this abdication. But there are three Republican commissioners and two Democratic ones, and the Democrats can both file “minority reports,” basically their own report on the regulation or lack thereof the rest of the committee is filing. The Republicans will file reports arguing with these reports. This is the most sensible thing you will read in this entire process.
  • Once that’s done, the lawsuits begin: There’s a lot here that has legal ramifications well beyond just the internet. If the government were able to make, literally, a lack of regulation the standard of regulation, that would essentially allow it to pre-empt any state’s law by removing regulation. This is extremely unlikely to get past any judge for that reason in of itself. But also pretty much everybody with a stake in the internet, from states to websites like Amazon and Netflix to non-profits, is going to hammer the FCC with lawsuits.
  • One thing almost certain to happen? The FCC’s order will be temporarily stopped by the courts: Usually when courts face something with complicated legal ramifications, like Trump’s attempt to ban Muslims, they issue a temporary stay, meaning the regulation can’t go into effect.
  • And settling this could take years: These are, in the nitty-gritty, some complicated issues that might take years to argue over. So that stay will last until the court makes a decision. And even then, that decision will likely be appealed to a higher court. It’s not impossible that some aspects of what the FCC is trying to do here will go to the Supreme Court in the end, and the law will be held in limbo if it gets that far.

And all of this might be utterly pointless, to boot: Depending on what happens in 2020, the FCC might restore net neutrality with a new board. Or Congress might pass a law that supersedes the FCC and makes net neutrality the law of the land.

But let’s say some portions of what the FCC wants go through. Let’s say there is no federal standard for net neutrality. What happens then? Imagine the above process, but in every single state in the nation, possibly even every city and town, as competing interests fight for net neutrality at the state level and the players use every bit of leverage they can get.

This is not some sort of legal horror story. That is, in many cases, what happens when the federal government deregulates something: States are expected to make their own decisions. It’s why some states let their politicians draw the lines for political districts, and others don’t. It’s why some states have unions and others don’t. Every time the government has taken their hands off the wheel, it’s with the expectation that fifty other sets will grab it. The FCC may want to break with that tradition but it’s unlikely to win that fight.

It’s not very hard to imagine what would result: A messy patchwork of plans that vary widely from state to state, creating a vast regulatory mess that most lawyers, forget most consumers, wouldn’t be able to unravel. So, despite the FCC’s claim that it’s freeing the internet, instead, it’s likely setting the stage for misery for everyone.

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