New FCC Chair Ajit Pai vowed to kill off net neutrality if he could before he ever got the job, and yesterday he made good on his word, introducing a plan to roll back the reclassification of broadband as a vital piece of infrastructure, and remove the FCC’s and remove the FCC’s authority to insist on an internet where companies like Comcast, Verizon, Charter, and AT&T don’t have any say in where you go or what you do online..
However, government regulations can’t be flipped on and off like a light switch. The FCC is a complicated bureaucracy with rules and procedures that have to be followed — and that Pai, a stickler for the rules, has often admonished the Commission for failing to adhere well enough to in his opinion.
In short, net neutrality may ultimately die, but if so it’s probably going to be a slow, loud death.
Getting to the Open Internet Order in the first place was a thirteen-month journey from losing the old rule in Jan. 2014 to approving the current one in Feb. 2015. And the road between yesterday’s speech and any potential reversal of the Order is just as winding.
Here are the key milestones you can expect.
Today: Pai’s office has made public the full draft text of his proposal [PDF].
This document doesn’t actually change anything. It’s a Notice of Proposed Rulemaking (NPRM). Think of it like a first draft: It means that the FCC is considering a new rule, and is giving notice about what they think it could be. (The related notice of inquiry, meanwhile, means that they’re asking a question.)
May 18: The Commission will vote on the NPRM in its regular monthly open meeting.
Barring any sudden, shocking surprises, the Commissioners will vote 2-1 (with Chairman Pai and Commissioner Michael O’Rielly in favor and Commissioner Mignon Clyburn dissenting) to consider the proposal. That doesn’t change anything, either, but it does kick off the formal review process.
After the NPRM is adopted, it has to get printed in the Federal Register. That can take anything from a couple of days to a couple of weeks, but after that, it’s off to the races.
The review process and comment period (likely June-August): This is the part where everyone with an opinion gets to tell the FCC what they think.
The review process has several parts. The most important, for everyone who isn’t an FCC employee, is the public comment period.
Once the NPRM is printed in the Federal Register, comment period is officially, formally open for the Commission to gather input from stakeholders. (You can, technically, comment now — the docket is open — but given how wedded Pai is to formal processes, comments that come in “correctly” probably stand a better chance of gaining traction.)
In this case, “stakeholders” includes not only businesses and consumer advocacy groups, but also literally everyone who uses the internet — i.e., you. Typically, comment periods run in three stages: for 30 days or so, followed by another 15 or 30 days for reply comments, and another 15 or 30 days for replies to the replies.
Basically, the way that works is something like this: Let’s say and ISP files a comment in the first window saying, “Title II is rubbish.” During the second window, anyone can file a comment directly rebutting the ISP’s argument, rather than the FCC’s initial proposal as made (“ISP is wrong, this is not rubbish”). And then in the third window, the ISP can explain why it disagrees and was right to begin with (“For these ten reasons, we stand by our assertion of ‘rubbish'”).
All told, the periods tend to get a little muddled with high-volume proceedings, but the overall gist is that the public gets a few months in which to have its say, depending on if Pai’s office extends them or not. (In 2014, then-Chairman Tom Wheeler’s office had to extend the deadline for net neutrality comments after overwhelming demand crashed the system.)
The closing deadline for the first comment period is July 17, 2017.
The closing deadline for the reply comment period is August 16, 2017.
After the comment period (September until… who knows): This is basically the make-or-break point, and it could occur any time between August and never.
Once the FCC has completed its gathering of public input and its internal review, it can shift gears. The first draft — the NPRM — gets edited into its final form, taking all the public comments, internal review, and answers to the notice of inquiry into account.
That becomes an Order, on which the Commission then votes again. If a majority votes in favor of the Order, it becomes law.
If it becomes clear that a majority will not vote in favor of an Order, however, it usually disappears quietly into the night instead of having to take the public loss — as we saw happen in Sept. 2016 with the now-dead set-top box proposal, for example.
If the Commission Adopts An Order: If, after completing its review, the Commission goes ahead and reverses the Open Internet Order anyway, this is when we’d find ourselves in lawsuit city.
The timing of this, too, depends on the final Order being published in the Federal Register. The FCC voted to adopt the Open Internet Rule on Feb. 26, 2015, but it wasn’t printed in the Federal Register until April 13. That kicked off the 60-day window in which any “aggrieved party” can sue.
In 2014, it was like clockwork: The window opened on April 13 and the lawsuits landed on April 14, the very next day.
If it comes to that, it’s anyone’s guess how long things take after. The court heard oral arguments on the matter eight months later, on Dec. 4, and issued a ruling — upholding the existing rule — six months later, in June, 2016.
That means the entire process — from the FCC starting to consider a rule, through adopting it, and through completing the lawsuits over it — ran about 2 1/2 years, start to finish. And we could now be looking at something like that once again.
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