Net Neutrality Returns to FCC Agenda Under Democrat Majority — and Immediately Draws Fire

Net neutrality — the concept that internet service providers should be prohibited from blocking or degrading access to users — is back in political play. And not everyone’s happy about the reprise.

On Tuesday, FCC Chairwoman Jessica Rosenworcel proposed restoring the agency’s net neutrality rules under its authority to reclassify broadband as a telecommunications service (rather than an information service). The proposal seeks to “largely” return to the Open Internet Order rules the FCC adopted in 2015, before they were overturned in 2017 by the Trump administration.

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“In the wake of the pandemic and the generational investment in internet access, we have a window to update our policies to make sure that the internet is not only open, but fast and fair, safe and secure,” Rosenworcel said in remarks at the National Press Club in Washington, D.C. “I am committed to seizing this opportunity. Now is the time for our rules of the road for internet service providers to reflect the reality that internet access is a necessity for daily life. Let’s get to it.”

Rosenworcel proposed the FCC take the first procedural steps toward reaffirming rules that would treat broadband internet service as “an essential service for American life.” Such net neutrality rules would affirm, under Title II of the Communications Act, “that broadband service is on par with water, power, and phone service; that is: essential,” according to a summary of her remarks provided by the agency.

The move comes after Democrats, led by Rosenworcel, now have a 3-2 majority on the commission with Biden appointee Anna Gomez sworn in as the FCC’s fifth commissioner on Monday.

Rosenworcel’s push for net neutrality protections was slammed by the cable industry’s biggest lobbying group, NCTA – the Internet & Television Association, which has long opposed such regulations.

“This will be a drawn-out, messy proceeding with lots of wasted expense to get rules that might not survive the next election and are unlikely to pass constitutional muster when they reach the Supreme Court, which they inevitably will,” Michael Powell, NCTA president and CEO (and a former FCC chairman), said in a statement.

According to Powell, “The proposed rules may complicate, if not deeply upset, our collective efforts to bring internet to rural and unserved communities. These rules set out very heavy regulations that complicate the calculus of deploying networks in expensive, risky and hard-to-serve markets. The FCC’s actions only add to that burden, and we fear net neutrality will lead to net fatality.”

Other observers characterized the proposed revival of the FCC’s net neutrality regulations as, as best, useless.

“The resurrection of net neutrality regulations is completely unnecessary and risks the health of telecommunications infrastructure,” said Jessica Melugin, director of Competitive Enterprise Institute’s Center for Technology and Innovation. “By every metric, U.S. networks are thriving under the repeal of net neutrality. Reinstating Title II classification risks harmful government meddling, depressed investment in expanding and improving networks and a degraded experience for consumers.”

But the FCC is not looking to apply Title II to broadband in its entirety, Rosenworcel said Tuesday. Instead, “we are proposing a light touch.” In 2015, when the FCC last had net neutrality rules upheld by the courts, the agency chose to exempt 27 provisions of Title II and more than 700 agency regulations for broadband and broadband providers, she said, adding, “We are sticking with that approach.”

To be clear, net neutrality has other staunch supporters. “We applaud Chair Rosenworcel for calling broadband what it is: a telecommunications service,” said Jonathan Schwantes, senior policy counsel for Consumer Reports, the consumer-advocacy organization. “Title II classification will ensure that broadband providers are properly overseen by the FCC like all telecommunications services should be. Whether it is junk or hidden fees, arbitrary pricing, deceptive advertising or unreliable service, broadband providers have proven over the years that without proper oversight, they will not hesitate to use their power to increase profits at the consumers’ expense.”

Rosenworcel shared with her fellow FCC commissioners a notice of proposed rulemaking (NPRM, in agency lingo). If adopted by a vote of the full commission at its monthly meeting on Oct. 19, the FCC will begin a new rulemaking to take public comment and reply comments on the proposal.

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