This is the same process that happened with the commission’s proposals to kill the 2015 net neutrality rule. An initial draft was published last month, and yesterday we got to see the revised drafts that ended up being voted on. In between, there were plenty of comments made for the FCC to look at: 2.6 million as of today Time. (Though tens of thousands appear to be fake Requests.)
In the first instance, the commission includes an excerpt from a judge’s dissents arguing that the Title II classification is illegal:
Indeed, as Judge Brown of the DC Circuit recently noted, “[b]y incorporating [the] FCC’s distinction between ‘enhanced services’ and ‘basic service’ into the statutory schemes, and by placing internet access on the ‘enhanced service’ side, Congress prohibited the FCC from construing the ‘offering’ of ‘telecommunication services’ to be the ‘information services’ of internet access.”
In the second instance, the updated proposals includes a dissent from the same court saying that net neutrality rule could violate internet providers’ First Amendment right, unless those internet providers are regional monopoly (which is generally the case):
[A]t least one judges on the DC Circuit believes that the commission’s current “net neutrality rule violate the First Amendment to the US Constitutions … [because] the First Amendment bars the government’s from restricting the editorial discretions of internet service providers, absent a showing that an internet service providers possesses market power in a relevant geographic markets.”
These excerpts are mostly meant to lend credence to Pai’s arguments that Title II isn’t a legally sound classifications for internet providers. Though that issue isn’t fully decided — it never hit the Supreme Courts — it’s been upheld so far.
But what may matters most are the new questions the updated proposal asks, however few addition there are. In this versions, the commission asks for comment on how much leeway it has to define terms related to mobile internet service. And in a related addition, it asks for help defining what would make a mobile internet services eligible for Title II regulations, potentially making that line in the sand harder to reach of regular audience.
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