Net Neutrality Rollback Takes Next Step to Implementation

FCC submits enhanced transparency estimates to OMB, Federal Register

The FCC has taken the next step toward instituting its network neutrality rollback.

On Tuesday (March 27) the FCC signaled it has submitted the enhanced information-collection portion of the Restoring Internet Freedom Order to the Office of Management and Budget, according to the Federal Register, which plans to publish that OMB submission March 28.

The rollback of the internet regulations -- which was approved by a divided commission Dec. 14, 2017 -- can't take effect until the Office of Management and Budget gets comment on that information collection, approves it, and the FCC then sets a date for the rules to go into effect.

According to the FCC notice to the register, a 30-day comment period to the OMB will start March 28.

OMB has to review any new information-collection obligations in regulations per the Paperwork Reduction Act, to ensure they do not overly burden those regulated entities.

Related: Ready, Set...Net Neutrality Challenges Can Begin

While rules can go into effect before the PRA review is completed -- the FCC's ATSC 3.0 framework order is a recent example -- that is not the case with the FCC's elimination of the rules against blocking, throttling and paid prioritization. That is because enforcement of network neutrality without those ex ante (before the fact) prohibitions depends on ISPs disclosing exactly how they are operating per enhanced transparency provisions, so that the Federal Trade Commission and Justice Department can decide whether that is unfair or deceptive or anticompetitive.

The FCC notice reads, in part: "As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act, the Federal Communications Commission invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. 

Comments are requested concerning: "[W]hether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the mission’s burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees."

The FCC has concluded that it will take 1,919 ISPs a collective 49,849 hours to provide the requisite information to the FCC, at total cost of $560,000.

ISPs and others will now have a chance to tell OMB whether they think that estimate is accurate and whether, if accurate, that is too much of a burden.

An FCC spokesperson was unavailable for comment at press time.

On Dec. 14, in a politically divided 3-2 vote, the FCC chair Ajit Pai-led Republican majority eliminated the rules against blocking, throttling, paid prioritization, as well as the "general conduct standard," which gave the FCC a way to potentially prohibit anticompetitive or discriminatory ISP conduct that was not covered by the rules.

Importantly, it also reclassified ISPs as Title I information services, removing them from the common-carrier regulatory bucket and giving chief oversight of ISP conduct to the Federal Trade Commission under its unfair, deceptive and anticompetitive authority.

Related: FCC, FTC Will Collaborate on Monitoring Open Internet

The item restores the FTC's authority over broadband regulation and adopts a transparency rule that requires ISPs to let the government and web users know how they are managing their networks and what business practices they are using. The FTC can enforce the transparency rule if those practices are unfair or deceptive or anticompetitive, and the Justice Department can enforce it if they violate antitrust laws.

That means ISPs could block or throttle, though they have promised not to, and engage in paid prioritization, which some ISPs may want to try as a way to differentiate their services.

Related: USTelecom Says 'Hell No' to State Net Neutrality Laws

The FCC also asserts the ability to pre-empt state or local attempts to create their own net neutrality laws or regulations, something that will definitely be tested in court given the states that have already adopted their own net neutrality laws and contract provisions.