It’s Groundhog Day for the Telecom Industry: FCC Reopens Net Neutrality Debate
Time is a flat circle. Barely 72 hours after Anna Gomez took her seat as the fifth FCC Commissioner, Chairperson Jessica Rosenworcel publicly issued a new Notice of Proposed Rulemaking, in a new docket, to “reestablish” FCC authority over “broadband Internet access service.” Thus is the Net Neutrality debate officially reignited.
The FCC proposes to readopt three “conduct-based” rules: No Blocking; No Throttling; No Paid Prioritization. It also proposes a “General Conduct Standard” prohibiting broadband Internet access service (BIAS) providers from “unreasonably interfering with” users’ ability to reach “lawful Internet content, applications, services, or devices of their choice.”
Nothing controversial here, right? Right?
It would be a return to the status quo ante, the Net Neutrality rules that the Pai FCC repealed in 2018. The D.C. Circuit rejected challenges to those rules in USTelecom v. FCC, finding that the FCC had appropriately used its statutory authority to reach a reasonable conclusion that these protections were warranted. The NPRM sets forth in great detail not only the legal authority but the objective reasons that the FCC should reinstate the rules.
Some now say that Net Neutrality as described in the NPRM will not survive review if it reaches the Supreme Court, because the “major questions doctrine” recently applied in West Virginia v. EPA won’t allow adoption of such rules absent unmistakably clear language in the Communications Act of 1934. The economic and social import of Net Neutrality, they say, counsels against readoption. But this doctrine did not appear in the Court’s review of the equally momentous BrandX decision, in which the FCC was affirmed in its conclusion that cable modem service is not a regulated telecommunications service. In fact, the FCC has been grappling with the regulatory classification of Internet access since 1998, so it is difficult to agree that the issue is new or is legally beyond the ken of the agency charged by Congress with protecting the nation’s communications.
Consider also that California enacted the Internet Consumer Protection and Net Neutrality Act in 2018, and the nation’s largest broadband providers abandoned their challenge to that law. Since then, six other U.S. States have enacted some form of net neutrality laws. Plainly it’s not only the FCC that is worried about consumers’ ability to access online content without impediment. One wonders why it would be controversial for the FCC readopt the same protections.
As Chair Rosenworcel promised, rate regulation is not on the table. And the FCC is ready to brush aside any Title II regulation that has no sensible application to BIAS. It is also ready to consider any “reasonable network management” accommodations that BIAS providers say are necessary to the day-to-day administration of their networks.
Nobody disputes that the nation’s broadband infrastructure was one of the heroes of the pandemic. Now that we know just how crucial BIAS is to American life, so much so that Congress continues to appropriate billions for the deployment of transmission facilities, readopting some basic consumer protections seems an incremental, but necessary, next step.