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The Fate of Net Neutrality Hinges on the House

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There have been loads and loads of press reports all falsely claiming that today, April 23, is the day that Ajit Pai’s Net Neutrality repeal takes effect.

But Net Neutrality isn’t dead yet. And — here’s the important part — it isn’t going to die at all if we have anything to say about it.

With your help, we’re fighting to pass a resolution of disapproval under the Congressional Review Act (CRA) that would overturn the repeal in Congress and restore the FCC’s strong rules.

We’re also taking the FCC to court, joining dozens of other public-interest groups, companies, and state and local lawmakers who sued to overturn Pai’s terrible decision.

Yet before we win the CRA or the court case, a day will come when the rules are indeed officially repealed and taken off the books at the FCC. It’s just not this day.

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The FCC’s order said April 23, but it didn’t tell the whole story

How can that possibly be? The reports all said today was the day — and that’s understandable enough.

As it is required to do, the FCC published its repeal decision (for its deceptively named “Restoring Internet Freedom” order) in a compendium of federal agency actions called the Federal Register. And it said right there in black and white that the repeal takes effect today.

Just look at the bottom-right corner here:

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But as a law professor of mine once said to me after I didn’t answer his question to his satisfaction: “Mr. Wood, when we read a statute, do we read only the first line of the statute?”

Let’s zoom in on that effective date and keep on reading:

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Clear as a bell, right?

Right?

Follow me through a few more twists and turns in the bureaucratic maze.

Repeal has to wait for White House approval

Thanks in large part to initiatives spearheaded by Vice President Dan Quayle (yes, that guy) and other lawmakers in the ’80s and ’90s, federal agencies have to get approval from the White House’s Office of Management and Budget (OMB) when they propose rules that collect information from businesses — or, in the case of this Net Neutrality repeal, even when they alter such requirements.

So when the FCC voted in December to gut the Net Neutrality rules, it said way down in paragraph 354 of that decision:

354. . . . .This Declaratory Ruling, Report and Order, and Order, including those amendments which contain new or modified information collection requirements that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act WILL BECOME EFFECTIVE upon the effective date announced when the Commission publishes a notice in the Federal Register announcing such OMB approval and the effective date.

Before it can grant that approval, OMB has to take public comment on the proposal and ruminate on whether the requirements are burdensome. (Hint: in the case of Pai’s repeal, there’s almost no burden on ISPs. They can block and discriminate against us however they want as long as they tell us in advance.) The OMB comment period closes on Fri., April 27.

OK, so where does April 23 come from?

The repeal isn’t effective until the OMB acts and then the FCC tells us about it by publishing yet another notice in the Federal Register. That process is a bit opaque and uncertain from a timing standpoint, but should happen in the next few weeks. 

Just one last twist, and we’re done.

April 23 was just a placeholder

Thanks to yet another federal rule, agencies have to specify an effective date when they publish decisions in the Federal Register. They can’t just say “we’ll tell you later.” So this FCC wanted to avoid confusion — ha! — from having two different effective dates for its decision.

That’s why there’s all of that legalistic nonsense in the FCC’s Federal Register notice — specifying that the order takes effect on April 23 “except for amendatory instructions 2, 3, 5, 6, and 8.”

Turns out these “delayed” amendments are basically the whole ballgame.

Fans of counting will note that the only instructions that aren’t delayed are number 1 (which is just a list of statutes the FCC wants to cite as authority for its actions), number 4 (which changes the name for these rules but not the rules themselves) and number 7 (another list of statutes).

Long after it voted for the repeal, and just days before that decision appeared in the Federal Register, the FCC put out a correction to its order explaining that only “the amendment to the heading of part 8 of the Commission’s rules” — that is, the name for the rules — “shall be effective 60 days after publication in the Federal Register.”

That’s all that happened today. A name change.

The bottom line?

Net Neutrality’s repeal hasn’t happened yet, but it will happen soon — probably at some point in the next few weeks.

And then with your help, we’ll restore the rules in Congress or in the courts, and this whole sad chapter in the history of this fight will be nothing more than a complicated footnote.

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