FCC issues Notice of Proposed Rulemaking over Republican objections.
FCC Chairwoman Jessica Rosenworcel and FCC Commissioner Brendan Carr arrive to testify during a House committee hearing on March 31, 2022, in Washington, DC. Credit: Getty Images | Kevin Dietsch
FCC Chairwoman Jessica Rosenworcel and FCC Commissioner Brendan Carr arrive to testify during a House committee hearing on March 31, 2022, in Washington, DC. Credit: Getty Images | Kevin Dietsch
The Federal Communications Commission today voted to move ahead with a plan that would restore net neutrality rules and common-carrier regulation of Internet service providers.
In a 3-2 party-line vote, the FCC approved Chairwoman Jessica Rosenworcel’s Notice of Proposed Rulemaking (NPRM), which seeks public comment on the broadband regulation plan. Initial comments are due on December 14 and the reply comment deadline is January 17; the docket can be found here.
The proposal would reclassify broadband as a telecommunications service, a designation that allows the FCC to regulate ISPs under the common-carrier provisions in Title II of the Communications Act. The plan is essentially the same as what the FCC did in 2015 when it used Title II to prohibit fixed and mobile Internet providers from blocking or throttling traffic or giving priority to Web services in exchange for payment.
The Obama-era net neutrality rules were eliminated during Trump’s presidency when then-Chairman Ajit Pai led a repeal that reclassified broadband as an information service, returning it to the less strict regulatory regime of Title I. The current FCC likely would have acted much sooner but there was a 2-2 deadlock until last month when the Senate confirmed Biden nominee Anna Gomez to fill the empty spot.
After the comment period, the FCC is likely to finalize the rulemaking and put the 2015 rules back in place. The broadband industry will likely then sue the FCC in an attempt to nullify the rulemaking.
Chair: Broadband needs “expert agency”
“Today, there is no expert agency ensuring that the Internet is fast, open, and fair… Today, we begin a process to make this right. We propose to reinstate enforceable, bright-line rules to prevent blocking, throttling, and paid prioritization,” Rosenworcel said at the commission meeting.
Title II regulation isn’t just about net neutrality, Rosenworcel said, arguing that the reclassification will give the FCC more authority to protect national security on broadband networks. “When we stripped state-affiliated companies from China of their authority to operate in the United States, that action did not extend to broadband services, thanks to the retreat from Title II. This is a national security loophole that needs to be addressed,” she said.
Without Title II, the FCC has “limited authority to incorporate updated cybersecurity standards into our network policies,” she said. The same is true of protecting privacy on broadband networks, she said.
“The law requires telecommunications providers to protect the confidentiality of the proprietary information of their customers,” Rosenworcel said. “That means that these providers cannot sell your location data, among other sensitive information. Those privacy protections currently extend to voice customers but not broadband subscribers. Does that really make sense? Do we want our broadband providers selling what we do online? Scraping our service for a payday from new artificial intelligence models? Doing any of this without our permission?”
Disputing claims that the FCC is overstepping its authority, Rosenworcel said the “rules are legally sustainable because they track those that were upheld in court in 2016—from front to back.”
Republican: Internet already “free and open”
ISPs are expected to argue that the FCC is not allowed to reclassify broadband as a telecommunications service even though courts did not block previous classification decisions. Courts upheld the FCC’s 2015 Title II classification and the later reversal of that decision, saying the FCC is entitled to deference as long as it provides a reasonable justification.
Opponents of the broadband regulation claim the FCC is likely to lose this time because of the Supreme Court’s evolving approach on whether federal agencies can decide “major questions” without explicit instructions from Congress. For much more on that topic, read our recent explainer: “Net neutrality’s court fate depends on whether broadband is ‘telecommunications.’”
FCC Republican Brendan Carr, a longtime opponent of common-carrier rules for broadband, has been vociferously arguing against Rosenworcel’s plan. Yesterday, Carr issued a press release arguing that “the Title II debate was settled when the Internet didn’t break.”
“When my FCC colleagues and I voted in 2017 to overturn the Obama Administration’s failed, two-year experiment with Title II, activists and politicians alike guaranteed the American public that the Internet would quite literally break without it,” Carr said. Since that didn’t happen, the FCC shouldn’t reimpose the rules now, Carr says.
“We already have a free and open Internet today, without Title II,” he said at today’s meeting. But while the FCC hasn’t been enforcing net neutrality the past few years, the broadband industry has had to follow similar rules in California and other states.
Carr today called the dire warnings in 2017 a “hoax” and denigrated the plan as imposing “1930s-era government controls to the modern Internet.” He also disputed Rosenworcel’s justifications for bringing back Title II, saying the FCC already has ample authority to handle national security and other matters.
Republican Commissioner Nathan Simington called the proposed rules “unnecessary, dangerously overbroad, and unlikely to survive judicial review.” He said that free-market mechanics have resulted in “de facto net neutrality.”
Democrats back chair
FCC Democrat Geoffrey Starks said the plan is “a framework that puts users in charge of what they do online—and not the companies they pay for a connection. It’s a framework that protects consumers in their use of an essential service—instead of simply trusting ISPs to do the right thing.”
Starks defended the FCC’s authority to act, arguing that Supreme Court decisions show “that Congress very obviously gave us the authority to decide the question of what counts as a telecommunications service.”
Gomez said the proposal “is not about controlling Internet content. Is not about stifling investment, regulating rates, or reducing competition. It is not about controlling the Internet.” Instead, the goal is to prioritize consumers and ensure that the Internet is “open and accessible to all,” she said.
Rosenworcel made it clear that she intends the FCC rules to apply nationwide and preempt state net neutrality laws, saying:
Restoring our open Internet policies will mean that a uniform legal framework applies to the whole country. Because if you hear cries that nothing has happened since the FCC retreated from net neutrality and are asking yourself what is the big deal, think again. Because when the FCC stepped back from having these policies in place, the court said states can step in. So when Washington withdrew, California rode in with its own regime. Other states, too. All in all, nearly a dozen put net neutrality rules in state law, executive orders, or contracting policies. So in effect, we have open Internet policies that providers are abiding by right now—they are just coming from Sacramento and places like it. But when you are dealing with the most essential infrastructure in the digital age, come on—it’s time for a national policy.
Listing image: Getty Images | Kevin Dietsch
Jon is a Senior IT Reporter for Ars Technica. He covers the telecom industry, Federal Communications Commission rulemakings, broadband consumer affairs, court cases, and government regulation of the tech industry.
