Net neutrality back on the table: FCC's Rosenworcel takes a stand

Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel wasted no time leveraging her voting majority, releasing a proposal to reinstate net neutrality regulations the day after new Commissioner Anna Gomez was sworn in to her post. 

The proposal would revive open internet protections which were first adopted by the Commission in 2015 but later repealed in 2017. If Rosenworcel's proposal is adopted, policies like rate regulation and network unbundling would be “strictly prohibited.” With Gomez's recent appointment, Rosenworcel's Democratic party now holds a 3-2 majority on the commission.

"Today, there is no expert agency ensuring that the internet is fast, open and fair," Rosenworcel said in remarks made before the National Press Club on Tuesday. "Restoring our open internet policies will mean that a uniform legal framework applies to the whole country...when you are dealing with the most essential infrastructure in the digital age, we benefit from one national policy."

More specifically, the rules would once again classify fixed and mobile broadband services as essential “telecommunications” services, which would enable the Commission to impose regulations on broadband under Title II of the Communications Act.

Title II net neutrality rules require internet service providers (ISPs) to treat all internet traffic equally and not discriminate or charge differently based on the user, content, website, platform or application. Under the rules, paid prioritization is also prohibited, preventing ISPs from charging content providers or users extra fees to use internet “fast lanes.”

In 2015, the FCC classified broadband ISPs under Title II to enforce net neutrality rules, as it gave the Commission stronger regulatory authority. Two years later, though, the FCC voted to repeal the net neutrality rules, a move generally supported by ISPs and other industry groups.

Rosenworcel in 2017 said the repeal put the FCC "on the wrong side of history, the wrong side of the law, and the wrong side of the American public." In July 2021, President Biden signed an executive order in support of the FCC reinstating net neutrality rules.

Now, Rosenworcel said the reinstatement of net neutrality will “allow the FCC to protect internet openness and consumers, defend national security, and advance public safety.”

“Without this authority, no federal agency can effectively monitor or help with broadband outages that threaten jobs, health, education and safety,” she wrote. “Open internet policies protect Americans’ freedom and their speech, only enshrining limits on broadband companies’ ability to limit consumer and business activities.”

Battle lines

If adopted by a vote of the full Commission in October, the agency will begin to take public comment on the proposal. However, legal experts have warned that the FCC’s attempt to return net neutrality will be futile, and could be a waste of government resources.

Two former Obama Administration lawyers published a legal analysis of the FCC’s plan, in which they lauded the goal of net neutrality, “that consumers can enjoy free and unimpeded access to lawful internet content of their choosing.”

But the lawyers, Donald B. Verrilli, Jr. and Ian Heath Gershengorn, claim that Title II regulation of the internet “would be struck down” and “would be a serious mistake.”

The Supreme Court is “likely” to strike down Title II regulations on broadband internet access service under the major questions doctrine, they said (despite the fact that the Supreme Court previously upheld the FCC's authority to classify broadband as a Title II service). In essence, the major questions doctrine allows courts to retain a more active role in determining the meaning and application of statutes in cases where there are significant policy implications at stake, they argued. It prevents agencies from having the final say on major policy questions when Congress has not clearly delegated that authority to them through the wording of the statute.

The proposed FCC regulation would also “bring about an enormous and transformative expansion in [the agency’s] regulatory authority . . . over the national economy,’” the analysis claimed.

Citing these arguments, FCC Commissioner Brendan Carr released a statement positioning him against the reinstatement of net neutrality. “Heading down the path to Title II would not only push vital FCC matters onto the back burner, it would knock many of them off the stove altogether,” Carr wrote.

Many have also made the argument that since net neutrality was revoked in 2017, natural market competition has kept ISPs from gauging consumers, and has led to record broadband buildouts.

Jonathan Cannon, policy counsel for R Street Institute in a statement called the FCC’s proposal “an act of sheer folly.”

Industry groups like US Telecom, NCTA — The Internet & Television Association, the Information Technology and Innovation Foundation (ITIF) and the Wireless Internet Service Provider Association (WISPA) all spoke against Title II regulation, with the latter responding to this week's FCC proposal with the statement that "twentieth-century utility-style rules are not needed at this time."

On the other hand, Fiber Broadband Association CEO Gary Bolton stated the federal government “also deserves credit for providing a ‘right-touch’ regulatory environment that encourages investment.”

Bolton said the FBA “looks forward” to reviewing Rosenworcel’s proposal and working with all of the Commissioners to ensure the regulations "do no harm.”

Consumer Reports stated it is in favor of the regulations that it believes will "hold broadband providers from carrying out anti-competitive and anti-consumer practices."

Rosenworcel acknowledged that the upcoming and renewed debate over net neutrality could get "messy at times" in her comments before the Press Club. But she urged all interested parties against going to the extremes seen in the past - which included death threats against former Chairman Ajit Pai.

"Make some noise. Raise a ruckus. But keep it in the lines," she said. "Above all, keep speaking up. We are here now because so many people let the agency know this issue matters."