Here we go again. As it was foreseen during the last US presidential election campaign and confirmed by media close to Trump just after the election day, the time is ripe for a review of the US net neutrality legal framework. Little more than two years after the last review, the Federal Commission of Communications (FCC) has published a Notice of Proposed Rulemaking (NPRM) and asked for public comments on the issue.
It is the story of a revenge. The open internet order was approved on February 2015 with a vote clearly divide along party lines, 3 to 2. One of the commissioners who voted against that order was the current President of the FCC, Ajit Pai. In his dissenting statement after 2015 vote, he clearly stated that there were no evidence for that decission. Furthermore, he hoped that the days of the open internet order were numbered and "the plan would be vacated by a court, reversed by Congress, or overturned by a future Commission".
The main rationale behind the new review is the lack of evidence of the 2015 open internet order, but also the harming effect of the order for the development of the broadband society in USA. In his speech announcing the NPRM, Ajit Pai underlined the success of the Internet growth since 1996 to 2014 and put on the table data about the decrease of investment in network infrastructure since 2014 (he said that among the 12 largest US Internet service providers, domestic broadband capital expenditures decreased by 5.6% percent, or $3.6 billion).
The efforts to prove the above two arguments are to avoid future court complaints to the forthcoming review based on the US 1946 Administrative Procedure Act that bans federal agencies making “capricious” decisions. The review of the net neutrality legal framework could be seen as a flip-flop movement based on political rationale, and therefore susceptible of anullment. We should remember that Internet giants stated their position about the review even before it was announced.
The actions towards a review of the net neutrality legal framework could be detected even in Europe. Although the European Electronic Communications Code proposed by the European Commission does not include any article related with net neutraility, we can not discard future legislative projects on the matter in Europe. Net neutrality has been included among the topics of the consultation on the future of the Internet launched by the European Commission.
Without any doubt, the next months we will see announcements and press releases from both sides of the net neutrality battle camp. The fragile peace of the war between digital platforms and telecom operators for the dominance of the Internet has been broken again.