The Federal Communications Commission (FCC) is the US regulatory authority that ensures compliance with the principles of net neutrality, which were established by the Commission’s Open Internet Order in February 2015.

Net neutrality means that all content on the internet shall enjoy the same priority, i.e. Internet service providers and any authority regulating the Internet should treat all data on the Internet equally and not discriminate or charge differently based on user, content, website, etc. Net neutrality is considered a vital component of the concept of Open Internet.

The FCC has set forth the following three rules in order to ensure net neutrality:

  • No Blocking: Broadband providers may not block access to lawful content, applications, services or unharmful devices.
  • No Throttling: Broadband providers may not deliberately target some lawful internet traffic for slower delivery to users than other traffic.
  • No Paid Prioritization: Broadband providers may not favor some internet traffic in exchange for consideration of any kind- in other words, no “fast lanes.” Internet service providers are also banned from prioritizing content and services of their affiliates.

Restoring the Freedom of the Internet?

On May 1st, nine Republican senators submitted a legislation proposal with the title: A bill to prohibit the Federal Communications Commission from reclassifying broadband internet access service as a telecommunications service and from imposing certain regulations on providers of such service (“Restoring Internet Freedom Act”). The proposed bill aims at preventing the FCC from classifying Internet Service Providers as common carriers under Title II of the Communications Act and it would prohibit the FCC from exercising the part of their regulatory authority that allowed the Commission to issue net neutrality rules (the full bill text is not available yet).

Sen. Mike Lee (R-Utah) stated that the internet “is threatened by the Federal Communications Commission’s 2015 Open Internet Order, which would put federal bureaucrats in charge of engineering the Internet’s infrastructure.” During the announcement, co-sponsor of the bill, Sen. Ted Cruz (R-Texas) repeated his charge that net neutrality is “Obamacare for the Internet”.

Republican FCC Chairman Ajit Pai had previously launched an initiative to roll back the net neutrality regulations.

Coincidental Court Ruling

On the same day, the United States Court of Appeals for the Columbia District Circuit denied the United States Telecom Association’s petition for a rehearing of their action against the FCC’s 2015 Open Internet Order (the net neutrality rule), which had been dismissed on appeal. The court has confirmed the lawfulness of the FCC’s net neutrality rules at this point. However, the reason for the denial of the rehearing was that a review of the case would be particularly unwarranted at present in light of the uncertainty surrounding the fate of the FCC’s Order as the Commission would soon consider adopting a notice of Proposed Rulemaking that would replace the existing rule with a markedly different one.

It remains to be seen what this markedly different rule will look like – that is, if the new bill will not by then have taken away the FCC’s authority to issue such rule. If broadband internet access service no longer is classified as telecommunications service, then privacy rights pertaining to telecommunications services, such as the secrecy of communication, may no longer apply to internet communication.