The FCC, as expected, voted 3-2 along party lines (with Democrats in the majority) to restore network neutrality rules that were eliminated under Republican control and to regulate internet providers under Title II of the Telecommunications Act.

The vote sets up a likely battle in the courts and Congress over what the cable industry’s biggest trade group called “unnecessary and unlawful broadband regulation.” Advocates, including Federal Communications Commission chair Jessica Rosenworcel, favor the return of Title II common-carrier regulation of broadband to guard against “blocking traffic, slowing down content or creating pay-to-play internet fast lanes” as she put it in a “fact sheet” on the agency’s website. 

Prior net neutrality rules went away in 2017 when the FCC under then Republican chairman Ajit Pai reclassified ISPs as Title I information services not subject to mandatory access or potentially rate regulation rules. 

Michael Powell, president and CEO of NCTA–The Internet & Television Association, began his reaction statement with: “Today’s action is the latest installment of a long-running campaign to establish FCC control of the internet. This is a politically-motivated reversal of prior law, not an exercise in evidence-based rulemaking. There is no evidence of a problem to be solved.” He concluded it with: “The good news is that the FCC’s action will be overturned in court. Congress has always been the appropriate forum to resolve these issues. We can only hope that the damage done to our vibrant internet ecosystem in the meantime will be limited.”

Brendan Carr, one of the two Republican commissioners who voted against the measure, put out his own fact sheet of reasons why putting broadband under Title II regulation was unneeded and could discourage investment in network improvements. “After the FCC imposed Title II rules on the Internet back in 2015, many broadband providers reduced their investments and halted the expansion of their networks,” Carr said. "Indeed, it was the only period of time outside of a recession where broadband investment declined. And after the FCC repealed those rules in 2017, broadband providers set new records for building out Internet infrastructure.” 

In teeing up today’s move with a preliminary vote on April 3, Rosenworcel stated the case for Title II. “The pandemic proved once and for all that broadband is essential,” Rosenworcel said then. “After the prior administration abdicated authority over broadband services, the FCC has been handcuffed from acting to fully secure broadband networks, protect consumer data, and ensure the internet remains fast, open, and fair. A return to the FCC’s overwhelmingly popular and court-approved standard of net neutrality will allow the agency to serve once again as a strong consumer advocate of an open internet.”

The agency also has said it will “establish broad, tailored forbearance — including no rate regulation, no tariffing, no unbundling of last-mile facilities and no cost accounting rules — in the commission’s application of Title II to broadband Internet access service providers.” 

Rosenworcel at today's meeting noted that after the FCC's net-neutrality rules were shelved, states such as California put in place their own version of regulations prohibiting blocking, throttling and paid prioritization on the web, but said the better approach is to have a national policy overseen by an expert agency. Net neutrality, she said, is supported by 80% of the American public, and the rules being adopted by the commission were "legally sustainable because they track those that were upheld by the courts in 2016, from front to back." 

The Federal Communications Commission will vote on whether to restore net neutrality during its open meeting April 25, which it said would bring back a national standard for broadband reliability, security and consumer protection. The proposal, from chair Jessica Rosenworcel, would ensure that broadband services are treated as an essential resource deserving of FCC oversight under Title II authority. Three commissioners (a majority) have already indicated their support for the measure.

The FCC said the proposal would see the commission play a key role in preventing broadband providers from blocking or slowing down internet service or creating pay-to-play fast lanes; would provide oversight of broadband outages; would boost security of broadband networks; would increase consumer protections; and would restore a national standard to keep access “fast, open and fair.”

Also Read: FCC Ups Benchmark For Broadband Speed

“The pandemic proved once and for all that broadband is essential,” Rosenworcel said. “After the prior administration abdicated authority over broadband services, the FCC has been handcuffed from acting to fully secure broadband networks, protect consumer data, and ensure the internet remains fast, open, and fair. A return to the FCC’s overwhelmingly popular and court-approved standard of net neutrality will allow the agency to serve once again as a strong consumer advocate of an open internet.”

Also Read: Cable ISPs Look to Shape Expected Return of FCC's Net Neutrality Rules 

NCTA–The Internet & Television Association, the cable trade association, wasn't pleased. “In the absence of any harm, the FCC is barreling ahead with a backward-looking, unnecessary proposal. Its repeated legal flip-flopping has become a tiresome political ritual unmoored from congressional direction that radically upends what should be a stable regulatory environment,” it said in a statement by president and CEO Michael Powell. “But this time, reimposing heavy-handed regulation will not just hobble network investment and innovation, it will also seriously jeopardize our nation’s collective efforts to build and sustain reliable broadband in rural and unserved communities. We urge the FCC to reverse course to avoid years of litigation and uncertainty.”

Independent communications consortium ACA Connects, for one, called the proposal unwarranted. “The FCC should be celebrating and empowering smaller and independent broadband providers, not seeking to tie their hands with century-old common carrier regulations,” ACA Connects president and CEO Grant Spellmeyer said. “Today, these providers ARE upholding the principles of an open internet and delivering unfettered, affordable, and faster services to their customers. This is in large part thanks to America’s competitive marketplace and its time-tested, balanced regulatory approach.”

ACA also pointed to statements by Republican commissioner Brendan Carr at an ACA event on March 6, when Carr said this to Spellmeyer about reapplying Title II regulations to broadband providers: “It’s a reaction to a market power dynamic that hasn’t existed in decades. It doesn’t make sense that the debate has crystalized to protect edge providers like Apple, Amazon and Meta from small broadband providers. ... Relitigating Title II is looking at a rearview mirror, while ignoring real other threats.” 

The commission, meanwhile, posted a video on X (formerly Twitter) to help make the case for net neutrality.

Rosenworcel will circulate her proposal to her fellow commissioners for their review. A draft will be made public on FCC.gov. The April 25 meeting will be open to the public and streamed live at www.fcc.gov/live.  

Netflix is again using the FCC’s net neutrality rulemaking to argue that interconnection fees charged by large internet service providers — for connecting Netflix and other unaffiliated streamers to their end users — are potentially anti-competitive and must be either eliminated or closely monitored.

The Federal Communications Commission’s proposed net neutrality rules focus on nondiscriminatory access by subs over the network’s last mile to the home or business rather than the connections among the internet backbone and interconnecting networks, but also view interconnection fees as potentially anti-competitive.

In imposing the 2015 net neutrality rules, the Democratic-led FCC did say ISPs could potentially exploit the points at which their terminating access networks link with other networks and the last-mile connection to subscriber homes, Netflix pointed out.

Also Read: No Numbers From Comcast for Peacock’s NFL Playoff Game Impact

The current FCC, in proposing to reimpose the rules, also said ISPs should be prohibited “from charging edge providers a fee to avoid having the edge providers’ content, service or application ‘blocked’ or ‘throttled.’”

Netflix definitely agrees.

As part of ensuring an open internet, Netflix told the FCC in comments on the proposed return of network neutrality rules that the regulator may want to prohibit such “access” fees to make sure that its content, and that of other edge providers, does not get “blocked or throttled.”

That’s because Netflix claims it has to pay those fees to larger ISPs to prevent them from creating congestion for Netflix traffic to favor an ISP’s own affiliated services.

As an example of the kind of streaming content an affiliated ISP could potentially favor, Netflix used the Comcast-owned Peacock streaming service and its groundbreaking, streaming-exclusive carriage of the January 13 Kansas City Chiefs-Miami Dolphins NFL wild-card playoff game, which research firm Antenna said drew the most subscription signups in streaming history. 

Access to big-ticket sports has long been a flashpoint for access to content.

To make sure content from unaffiliated edge providers like Netflix isn’t blocked, the company said, the FCC must monitor complaints about anti-competitive interconnection conduct on a case-by-case basis under the bright-line rules banning blocking or throttling.

The fact that ISPs have control over allowing other providers or content platforms to interconnect with their network via “peering” and “transit” agreements gives them the ability and opportunity to “exploit the size of their networks to impose ‘selective’ interconnection policies,” Netflix said. 

While Netflix said most ISPs interconnect “cooperatively and efficiently,” large ISPs, particularly vertically integrated ones, have the power to anticompetitively exploit their control over connections by “either (1) degrading the quality of their competitors’ content or (2) increasing their competitors’ costs.” 

Likely seeing the re-regulatory handwriting on the wall, cable internet service providers have told the FCC just how it should reclassify broadband as a Title II service and what it should and shouldn’t do when it reimposes new net neutrality rules, as it is expected to do after a suitable timespan following the public comment period on its reclassification proposal.

In reply comments to the Federal Communications Commission (due January 17), NCTA – The Internet & Television Association continued to argue against either reclassification or the return of rules against blocking, throttling and anticompetitive paid prioritization, which it said are illegal (beyond the agency’s authority), unnecessary, burdensome and counterproductive to the goal of universal broadband.

Also Read: Former Democratic Iowa Official Opposes Net Neutrality Rules

But given that a Democratic majority supports the return of broadband regulatory authority, NCTA told the FCC just where to go on the path to regulating its internet access service. That includes preempting any state attempts to go beyond the FCC rules, as well as not applying the rules to interconnections between ISPs and streamers like Netflix.

Netflix has long argued for interconnection neutrality, saying the fee ISPs charge streamers for such connections are an arbitrary tax levied by powerful ISPs that control streamers' access to their subs and the quality of the video they deliver.

NCTA, joined by over a half-dozen state associations, said if the FCC goes ahead with the plan, it should do the following:

1. Provide exceptions for reasonable network management;
2. Permit usage-based billing and zero-rating;
3. Refrain from extending those rules to non-BIAS [broadband internet access service] data services or internet interconnection and traffic exchange arrangements;
4. Avoid drawing “unwarranted” distinctions between broadband technologies (as in, apply it to wireless, fixed wireless, satellite-delivered broadband or any other broadband delivery technology).
5. Forbear from all Title II provisions that would authorize the FCC to regulate rates and mandate unbundling, as well as from other “burdensome and ill-fitting” provisions of Title II.
6. Preempt state and local regulation of broadband services and reject proposals to deem any federal framework as merely a “floor,” “as such an approach would only invite states and localities to attempt to override federal policy determinations.”

NCTA pointed out in its comments that the Democrat-led imposition of net neutrality rules in 2015 included a directive that states “could not disturb [the FCC’s] ‘carefully tailored regulatory scheme’ by regulating more or less stringently.” It said the regulator should follow the same course.

Now that reply comments have been received, FCC chair Jessica Rosenworcel can schedule a vote on a final order as soon as those comments have been sufficiently vetted.

Patty Judge, a former Democratic lieutenant governor and state agriculture secretary in Iowa, said the FCC’s plan to reclassify internet access as a common carrier and impose net neutrality regulations will hurt, not help, the effort to close the rural digital divide.

She made that case in reply comments to the Federal Communications Commission (the deadline is Wednesday, January 17), a copy of which was supplied by Focus on Rural America, a self-described progressive advocacy group that Judge co-founded.

Judge spoke out strongly in support of letting internet service providers “get the job done” of closing the digital divide, a task she called “daunting at best and near impossible at worst.”

“Apart from driving away private investment and adding regulatory burdens to an already complex buildout process,” she said, sounding more like a cable lobbyist than a former Democratic state official, “the FCC’s proposal will simply result in — as two former Obama Administration Solicitors General put it — ‘a massive waste of resources for the government, industry, and the public, as well as the lost opportunity to pursue more pressing policy goals such as deploying robust broadband service to all Americans.’ ”

Those former solicitors general, Donald B. Verrilli Jr. and Ian Heath Gershengorn, are even higher-profile Democrats who weighed in strongly against common-carrier reclassification in their own comments back in September. 

Judge told the FCC that while “disparities in connectivity across the nation continue to grow more stark between rural and urban communities” and the agency’s proposed new rules against blocking, throttling and anticompetitive paid prioritization are a “misguided effort that takes attention away from our collective goal: achieving universal connectivity, especially for unserved, rural areas that have been cut off from digital opportunities for far too long.”

While she praised the FCC for efforts to close the digital divide, particularly getting last-mile connections to rural communities, Judge said that “significant internet regulatory changes masked under an ‘open internet’ title only pull us further away from reaching a fully connected rural America.”

Already the Federal Communications Commission’s busiest docket, the effort to restore network neutrality rules saw a rush of new comments Thursday (December 14), the deadline for initial submissions by interested parties looking to affect the outcome of the proceeding.

Replies to those comments are due January 17, after which the FCC can schedule a vote on a final rulemaking.

The FCC's Democratic majority supports restoring the rules by reclassifying internet access as a Title II telecommunications service subject to FCC regulation as a common carrier. With three out of five votes for restoring the rules, they are likely to return in the new year after the regulator has collected public input on the proposed rulemaking.

NCTA: The Internet & Television Association was mincing no words in its opposition. “[A] bare majority of FCC Commissioners are proposing, for no reason other than partisan politics, to impose the most intrusive and overbearing regulatory framework on one of the most dynamic technologies in the history of communications — the internet,” the group representing larger cable MSOs said. “The specious and ever-changing rationalizations asserted by the FCC defy marketplace reality and suggest an agency more committed to expanding its own regulatory power than to supporting the continued growth of a competitive marketplace that is delivering fast, open and innovative services to more Americans than ever before.”

The U.S. Chamber of Commerce says the reclassifiation should be a nonstarter. “Title II reclassification will accomplish one thing — increasing the FCC’s control over the Internet,” the chamber said, a move that would be “unlawful and unwise.” It advises against adopting “a vague standard that provides no guidance as to what constitutes compliance, but provides license to the FCC to adopt controversial and anti-consumer rules and enforcement policies.”

In a blog post illustrated by a familiar evil clown/devil, USTelecom president and CEO Jonathan Spalter likened the FCC proposal to “a casting call for the upcoming streaming prequel to Stephen King’s It, serving up Pennywise [King’s shape-shifting monster clown] and a veritable who’s who of modern-day monsters lurking under the bed.”

Spalter said the FCC’s suggestion that the reclassification is needed to “save the internet” is disconnected from the reality that the internet has flourished under the light touch of a Title I information services definition of internet access.

WISPA, which represents fixed wireless internet service providers, said reclassification would hurt small internet service providers and their communities.

“When looked at in combination with other regulatory mandates Congress has applied to broadband providers since 2021, [reclassification] will undercut the Biden administration’s efforts to invest billions of taxpayer dollars to deploy broadband service to unserved and underserved Americans. Imposing burdensome, ‘one-size-fits-all’ regulations on smaller broadband providers is the very antithesis of promoting investment, innovation, competition and lower costs to consumers,”  WISPA said.

“The commission’s proposal to convert broadband internet networks into public utilities is legally unsupportable as well as unwise, unnecessary and unjustified from a policy perspective,” Randolph May, president of free market-oriented think tank the Free State Foundation, told the FCC. “Stated bluntly, the Commission’s proposal, if adopted, by asserting stringent bureaucratic control over the practices and operations of private sector Internet service providers, would constitute one of the 21st century’s most flagrant government power grabs.”

On the other side, INCOMPAS, which represents competitive carriers and some high-profile edge providers, said the FCC should definitely reclassify internet access as a telecommunications service and reinstitute net neutrality rules “to ensure that residential and small business customers throughout the United States have access to an open internet so that they can access the lawful online content, applications, and services of their choice.”

The Computer & Communications Industry Association, whose members include the biggest of Big Tech, urged the FCC to restore the rules against “blocking, throttling, paid prioritization and unreasonable conduct.”

The “unreasonable conduct” reference is to one of the rules the FCC would restore, a vague, catch-all category that would allow the FCC to regulate unspecified conduct if it concluded it impeded an open internet. It is arguably the rule ISPs fear most, since they have supported non-Title II-based rules preventing blocking, throttling and anticompetitive paid prioritization.

And ISPs say that if the FCC does reclassify internet access as a utility-style service, it should preempt states and localities from doing their own regulating of the internet.

Not surprisingly, the National Association of State Utility Consumer Advocates argues the opposite. “[T]he FCC should assure that states, including state regulatory commissions and NASUCA members have latitude to advance state interests such as public safety and continuity of service and consumer protection for telecommunications services and providers,” NASUCA said.

The Federal Communications Commission has voted 3-2 to begin the process of giving utility-style authority to regulate broadband access by reclassifying broadband as a Title II telecommunications service subject to some common-carrier regulations and then restoring bright-line rules against blocking, throttling and paid prioritization.

“Today, there is no expert agency ensuring that the internet is fast, open, and fair,” FCC chair Jessica Rosenworcel said. “And for everyone, everywhere to enjoy the full benefits of the internet age, internet access needs to be more than just accessible and affordable. The internet needs to be open.”

Broadband access is currently classified as a Title I information service under the Communications Act of 1934, and thus not subject to mandatory access or other common-carrier regulations.

The proposed Title II-based rules prevent blocking, throttling or “anti-consumer” paid prioritization of internet access by internet service providers. The FCC is also restoring the internet conduct standard by which it could review conduct not prohibited by those rules — like zero-rating plans — but that could adversely affect internet openness and access to content.

Republicans fear that vague standard could give the FCC broad, and unchecked, regulatory power over the internet.

At its monthly public meeting Thursday (October 19), the FCC approved a notice of proposed rulemaking (NPRM) that would do all that. It was the first meeting with new Democrat Anna Gomez, and so the first meeting at which Rosenworcel could get the three Democratic votes needed to launch the rulemaking.

The attempted restoration of the FCC's broadband access regulatory authority is just the latest in a years-long cycle of Title II vs. Title I debate and reclassification and rule-setting and un-setting.

The Democrat-led FCC adopted net neutrality rules in 2015, which were repealed two years later by a Republican-led commission.

The FCC's latest attempt to restore the rules begins a period of public comment, including legislators saying they need to step in to clarify the FCC's broadband regulatory authority under either Title II (Democrats) or Title I (Republicans). But given the current state of congressional dysfunction, the FCC looks like it will continue to be the place where this particular brand of regulatory sausage is made.

If past is prologue, though, and the Democratic-led FCC decides to reregulate broadband, a decision won't come for several months. That decision will then almost certainly be appealed to the FCC, taken to court or both.

A federal court upheld the previous Republican-led FCC’s December 2017 elimination of the rules.

This time around, Democrats are essentially arguing that given all that has happened since the rules were eliminated — the COVID-19 pandemic that accelerated the move online and national security threats to networks among them — the FCC does need the sort of regulatory muscle that Title II (common-carrier) authority gives it over last century's must-have communications technology, traditional phone service, only without the phone-style rate regulation that is pretty much the third rail of broadband policy.

The FCC will also not assert Title II authority to unbundle networks.

But Democrats want affordability and the related issue of equity to be part of the access equation, which Republicans worry will mean some form of back door rate regulations via a “just and reasonable” price standard.

Rosenworcel tried to reinforce the no rate regulations part of the item. “This is not a stalking horse for rate regulation. Nope. No how, no way. We know competition is the best way to bring down rates for consumers.”

Said Republican commissioner Brendan Carr: “We should not spend our time staring into the regulatory rear-view mirror or relitigating disputes that have long since passed from relevancy. Yet that is precisely what the agency does today with Title II. 

“I would encourage my colleagues to change course and focus the FCC’s work on the numerous, important subjects that Congress has authorized the Commission to address — from rural broadband to spectrum to universal service reform,” Carr continued. “Heading down the path to Title II will not only push vital FCC matters onto the back burner, it will knock many of them off the stove altogether.”

Gomez said the effort was not about controlling the internet or its rates, but about getting input on how best to create a needed national regulatory framework to make sure the internet remains accessible, secure, open and available, including to historically underserved communities. Gomez, who is Hispanic, delivered her open meeting remarks in both English and Spanish.

Republican commissioner Nathan Simington called the Title II reclassification effort unnecessary, dangerously overbroad, and unlikely to pass judicial muster.

Democratic commissioner Geoffrey Starks said: “It’s 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.“

Friends and Foes Weigh In

There was plenty of outside reaction to the vote.

“With today’s vote, the FCC unfortunately has placed politics over sound policy and fiction over facts, and we are now embarking on yet another unnecessary and distracting net neutrality proceeding,“ Michael Powell, president and CEO of NCTA: The Internet & Television Association, said. “By introducing the most sweeping command and control framework ever imposed on broadband networks, the FCC’s proposal is a monumental change in how the internet will be regulated and will dramatically affect how it will work going forward.”

Powell is a former FCC chair who effectively mapped out the FCC’s internet openness blueprint in a 2004 speech laying out four key internet freedoms.

“[T]oday’s proposed agency action will go down in history as one of the most egregious overreaches in regulatory history,” Free State Foundation president Randolph May said. “Rather than “net neutrality,” the proposed strict government control of Internet providers by the imposition of public utility regulation might more properly be called 'net neutering.’”

Benton Institute for Broadband & Society senior counselor Andrew Jay Schwartzman offered a different perspective. “The laws governing U.S. telecommunications have not changed over the last several years,” he said of the FCC vote. “What has changed is the public’s understanding of the critical need for fully functional and reliable high-speed internet access. The COVID epidemic and the changing national security environment, among other things, demonstrate how essential it is for the FCC to restore the protections afforded under Title II of the Communications Act to broadband.”

In the run-up to the FCC’s elimination of the rules, the debate became heated, with protests and even death threats against commissioners and a bomb scare that interrupted the vote to eliminate the rules back in 2017.

“Seven years ago, the world was promised a digital apocalypse when the Pai FCC repealed ‘net neutrality’ regulations,” said Evan Swarztrauber, senior adviser at the Foundation for American Innovation and former adviser to Trump-era FCC chair Ajit Pai [whose FCC eliminated the rules] and commissioner Brendan Carr. “Those false flames of fear contributed to an environment that led to death threats against FCC Commissioners and their families and a bomb threat called into the Commission on the day of the repeal vote. Not only did the predictions fail to materialize, but America’s internet got faster, more available, more competitive and cheaper when adjusted for inflation. [S]o here the FCC goes again — hitting the pingpong ball across the table for another waste of time and taxpayer resources that has a very good chance of being struck down at the Supreme Court.”

House Energy & Commerce Committee Republicans and FCC GOP member Brendan Carr are singing from the same hymnal when it comes to the FCC Democratic majority’s plan to launch a notice of proposed rulemaking (NPRM) restoring network neutrality rules rejected by the previous Republican-led FCC.

The headline on an October 17 press release from all the E&C Republicans proclaimed: “E&C GOP to Rosenworcel: The Net Neutrality Debate was Settled When the Internet Didn’t Break.”

The release was announcing a letter those members had sent to Federal Communications Commission chair Jessica Rosenworcel counting the ways the FCC would be wrong to restore the rules and reclassify broadband as a Title II telecommunications service subject to FCC open access and other regulations.

Enter Carr, whose October 18 statement was headlined: “The Title II Debate Was Settled When the Internet Didn’t Break.” He also posted a copy of the GOP House members’ letter to the social-media platform X (formerly Twitter), endorsing it.

Both the letter and Carr’s statement argue that under the light-touch — or, as Democrats would say, essentially “no touch” — regulation of Title I, broadband networks have thrived, investment has increased (as has competition) and the real cost of the service has gone down.

“[U]tility-style regulation of the Internet was never about improving your online experience — that was just the sheep’s clothing,” Carr said. “It was always about government control. So no matter what you hear tomorrow and beyond, the Internet is not broken and the FCC does not need Title II to fix it.”

Also Read: NCTA Chief Michael Powell Kicks Off Cable’s Latest Rhetorical Assault on Net Neutrality

House Republicans agreed: “Despite constant fear-mongering, this debate was settled in 2017 when the Internet didn't break following the repeal of heavy-handed FCC regulations,” House E&C chair Cathy McMorris Rodgers (R-Wash.) and Communications Subcommittee chair Bob Latta (R-Ohio) said.

In their letter, the legislators sought a raft of answers from Rosenworcel on everything from who participated in drafting the NRPM, to whether it was discussed with the White House to whether the FCC has ever received any complaints about the blocking, throttling and paid prioritization that the rules are meant to prevent, and if so from whom.

They also want assurances the FCC will hold to its pledge not to regulate rates. That means rate regulation in any way, shape or form, Republicans said, either before or after the fact.

The Republican-saber rattling notwithstanding, the Democratic FCC majority will almost certainly vote on October 19 to launch a rulemaking to reclassify internet access as a Title II service subject to FCC regulation and restore rules against blocking, throttling and paid prioritization, as well as reinstate a “general conduct standard” allowing the agency to regulate conduct not specifically falling under those headings.

DENVER — With the Democratic FCC majority once again on the offensive with proposed net neutrality legislation, the cable industry's top policy figure, NCTA: The Internet & Cable Association president and CEO Michael Powell, used an opening session at his industry’s annual tech trade show Wednesday to launch a full-throated, very libertarian-leaning counter-offensive. 

Powell labeled Federal Communications Commission chair Jessica Rosenworcel’s new attempt to reclassify and regulate broadband as a Title II common-carrier service, setting rules preventing ISPs from establishing abusive restrictions and tolls, as an “illusory” effort trying to solve a “fabricated” problem.

Interviewed during a SCTE Cable-Tec Expo keynote session by CableLabs president and CEO Phil McKinney, Powell described the FCC’s approach as being rooted in regulatory solutions for problems that existed with railroads in the 1800s.

“It’s a shocking mistake,” he said. “It’s not only dated, it’s your father’s Oldsmobile.”

Powell said the cable industry has no economic incentive to arbitrate who does and who doesn’t have access to its network infrastructure. 

“We’re doing pretty damn good with having open pipe,” he said. 

And with artificial intelligence, piracy and Big Tech, Powell questioned the FCC's regulatory priorities. 

Further, he kicked the tires on their use of time and money, given that a Republican win of the White House and Congress next year — or the Supreme Court — could quickly wipe all of the FCC’s net-neutrality work away. 

Net neutrality legislation does have an ephemeral quality that comes and goes with the political cycle. 

In 2017, the FCC under Republican chair Ajit Pai scrapped net neutrality rules established two years earlier by Pai's predecessor, Democrat Tom Wheeler. 

FCC chair Jessica Rosenworcel is clearly focused on building both a legal case and public support for the regulator’s reclassification of broadband as a Title II common-carrier service, an effort she is teeing up at this week’s public meeting.

With the Federal Communications Commission’s Democratic majority on the record in support of that Title II designation, the notice of proposed rulemaking (NPRM) will almost certainly pass 3-2, with Republicans holding to form and opposing the effort.

The NPRM will then launch a comment period where, if past is prologue, the FCC will receive lots of input in its public docket before proceeding to a vote on final rules.

As with other FCC efforts to clarify its regulatory authority over internet access, this one will almost certainly be aslo challenged in court and the FCC will need to dot its i’s and cross its t’s beforehand.

The FCC has issued a couple of fact sheets over the past two weeks to help make its case in advance.

One, the “National Security and Public Safety Impacts of Restoring Broadband Oversight,” argues that the COVID-19 pandemic, among other things, has created a new reality in which the FCC “has a responsibility to restore its broadband oversight authority and reimposing net neutrality rules that prevent blocking, throttling and so-called paid prioritization ‘fast lanes.’”

The FCC invoked foreign threats in the sheet, which was sent to reporters and others. It noted that although the agency has taken steps to protect communications networks from hostile governments, the lack of specific authority that Title II would give it over access has left a “national security loophole.”

Restoring Title II would allow the FCC to deny foreign governments access to U.S. networks, the fact sheet said.

Another loophole is emergency information, the FCC suggested. “Reclassifying internet access as a Title II service would allow the FCC to require broadband providers to report and address internet outages, like the FCC does for voice service today, and ensure that response personnel know when service is impacted, especially during emergencies,” the fact sheet said. 

A federal appeals court, in upholding most of a previous order removing the net neutrality rules and classifying internet access, did cite the FCC’s failure to talk about how its rollback of the rules would affect public safety.

Also Read: Supreme Court To Hear Case That Would Weaken FCC

Rosenworcel says that restoring the rules would just be a way to “kick-start” the process of “rectify[ing] this abdication of national security and public safety oversight.”

In a second “fact sheet,” the FCC pitched the proposal as protecting consumers, more than 80% of whom it said support “open internet protections.”

The FCC said restoring the rules means protecting consumer privacy, ensuring “fair” treatment by ISPs, including preventing them from blocking or throttling internet service or creating paid “fast lanes,” as well as combating VoIP robocalls.

Fair treatment raises another new net neutrality issue since the last battle over the rules — equity, an issue that could bring cost into the equation and raises the specter of some form of rate regulation.

But two parties can play the fact-sheet card.

Republican commissioner Brendan Carr has countered with his own release branding Rosenworcel’s facts as myths.

As to Title II being necessary for national security, for example, Carr said the FCC has been applying the Communications Assistance for Law Enforcement Act (CALEA) to internet service providers without Title II.

And when it comes to consumer protection, Carr said Title II would strip the Federal Trade Commission of its authority over broadband.

Carr did not mince words about the chairwoman's fact sheet efforts.

“As with past iterations of this debate, the plan’s backers are trotting out a series of farcical claims to justify this power grab — claims that are as credible as their assertion in 2017 that ending Title II regulation would slow down and end the Internet,” he wrote in presenting his sheet, adding: “Reminder: mobile speeds are up over 6X since then! So here are just some of today’s top Title II myths followed by facts that set the record straight.”

Net neutrality has been a political battle, but legislators on both sides of the aisle have also tried for years — or at least have made noises like they were trying — to come up with a legislative fix by clarifying what authority they meant to give the FCC when it comes to regulating broadband.

Republicans and industry players have backed legislation that would authorize net neutrality rules against blocking, throttling and anticompetitive paid prioritization so long as it is not under Title II. But many Democrats have argued that such regulations need to be Title II-based, so a congressional solution has been a nonstarter.

Given the bitterly divided — probably dysfunctional — state of the current Congress, a legislative solution appears no closer. That’s despite all sides saying legislation is the best way to prevent the pendulum swings from Title II to Title I with changes in the political makeup of the FCC, giving industry some vaunted regulatory certainty over its billions of dollars in investments.

Anna Gomez, President Joe Biden's nominee for the open Democratic seat on the Federal Communications Commission, told a Senate Commerce Committee nomination hearing panel Thursday she supports reclassifying internet access as a Title II telecommunications service.

Currently, the FCC classifies internet access as an information service under Title I of the Communications Act, and not subject to common-carrier/open access regulations. That occurred after network neutrality regulations approved under Obama-era Democratic chair Tom Wheeler were then unapproved by the succeeding Republican majority under Trump-era chair Ajit Pai.

Under questioning by Sen. Jerry Moran (R-Kan.), Gomez said: “I think that private internet access service is too important, too central, to our lives and to our economy not to have effective oversight. And so I would be supportive of reclassification to Title II.”

With the FCC’s two current sitting Democrats, chair Jessica Rosenworcel and commissioner Geoffrey Starks, both supporting robust network-neutrality rules, the way appears open for their return — and likely a return of the legal battle that has characterized the issue for a couple of decades as changes in administrations have led to shifts in regulatory approaches to the internet.

That is, unless Congress steps in to clarify the FCC's broadband regulatory authority, which Gomez said she would support as the best way to resolve the issue. Sen. Ed Markey (D-Mass.) said at the hearing that he planned to introduce legislation clarifying that authority.

Gomez also said that while she thought Title II gave the FCC the strongest oversight, she did not believe in using that authority to regulate pricing, which could be allowed under Title II.

That issue came up during the hearing as a result of FCC chair Jessica Rosenworcel's circulation of a Notice of Inquiry last week into how broadband providers use data caps and usage-based pricing.

Opponents of Title II-based FCC network neutrality rules — which specifically forebore from the rate regulation authority in Title II — feared regulation of such usage models would be a form of back-door rate regulation.

“The [FCC's] proposed 'data cap inquiry' is the opening skirmish in the coming net neutrality battle," says Free State Foundation President Randolph May. "I can almost see Paul Revere riding into the night, warning 'The Internet Regulators Are Coming!’ Make no mistake: FCC regulation of data caps is rate regulation, pure and simple.”

Perhaps anticipating a potential change in House leadership next year after midterm elections, the possible incumbent future chair of the powerful House Energy & Commerce Committee signaled the FCC that it should stay within its regulatory lane, likely including any attempt to impose new net neutrality regulations, if the agency gets a third Democrat seated during the lame-duck session.

In a letter to Federal Communications Commission chair Jessica Rosenworcel, Rep. Cathy McMorris Rodgers (R-Wash.), ranking member of the committee, sent this warning: “As the committee of jurisdiction overseeing the FCC, I assure you the committee and its members will exercise our robust investigative and legislative powers to not only forcefully reassert our Article I responsibilities, but to ensure the FCC under Democrat leadership does not continue to exceed Congressional authorizations.”

The Energy & Commerce Committee has primary jurisdiction over communications issues.

Rodgers did not specify which congressional authorizations she felt the FCC had exceeded, though an appeals court did recently vacate an FCC decision to toughen broadcast foreign programming identification requirements, saying the FCC had exceeded its authority.

But Rodgers made it clear she saw it as a pattern of bad regulatory behavior. The FCC's authority to regulate net neutrality has been one of the things Republicans, including Rodgers, have said the FCC under Democratic leadership has gotten wrong.

“[I]n recent years the FCC has taken it upon itself to misinterpret its authority to initiate rulemakings with ‘economic and political significance’ that fit the chair’s political leanings," she said.

Also: Supreme Court Deals Blow to Net Neutrality Rule Fans

Rodgers pointed to a recent Supreme Court decision, West Virginia vs. EPA, that she suggested the FCC should follow. In that decision, the court rejected an EPA interpretation of the agency's congressional authority.

Traditionally, applying the so-called Chevron doctrine, the courts have given much deference to agency expertise on how they interpret congressional direction and intent.

But the Biden administration’s loss in the Supreme Court ruling involving the Environmental Protection Agency’s ability to regulate power plants undercut the doctrine and was seen as a potential victory for ISP arguments that the FCC was outside its regulatory lane when it reclassified internet access as a Title II common-carrier service subject to open access and other requirements and imposed net neutrality rules.

Rodgers is clearly in that camp saying the court decision made clear that "such reliance on the administrative state undermines our system of government. Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats," the latter which, she said, will no longer be tolerated.

Also: More Net Neutrality Billboards Go Up

“As the court explained, ‘[p]recedent teaches that there are ‘extraordinary cases’ in which the ‘history and breadth of the authority that [the agency] has asserted,’ and the ‘economic and political significance’ of that assertion, provide a ‘reason to hesitate before concluding that Congress’ meant to confer such authority,” she told Rosenworcel.

Ironically, Chevron was central to the Supreme Court’s 2005 decision in NCTA v. Brand X Internet Services, which upheld the FCC’s authority to classify broadband as an information service not subject to mandatory access common-carrier regulations. That finding has left different FCCs to define and redefine internet access and has prompted calls for Congress to step in and do its duty to clarify the statute.

Congress has yet to do so. Both sides of the aisle have said they want such clarity, but can't agree on what they would be clarifying given that Democrats generally want the authority to rest under the Title II telecommunications service common-carrier regime and Republicans under the Title I information-services regime.

Rodgers had some homework for Rosenworcel on the issue. She asked her for a list of all pending and anticipated rulemakings and what congressional authority the FCC would be asserting for each, as well as any declaratory rulings that would be issued by an FCC office or bureau on delegated authority — which, unlike rulemakings, don't require a vote by the commissioners.

Rosenworcel was quick to respond and provide the requested lists, which did not include any upcoming vote on network neutrality rules.

"I welcome the opportunity to respond and can assure you that the Federal Communications Commission takes seriously the responsibilities entrusted to it by Congress under the law," she said in a letter to Rodgers released Oct. 18, "including the efforts identified in your letter 'to expand connectivity to all Americans, regulate broadcast stations and multichannel video programming distributors (MVPDs) in the media marketplace, limit the transmission of illegal robocalls, preserve the capability for reliable 911 and emergency alerting services, and remove untrusted communications equipment and services from U.S. communications networks.'" ▪️

FCC Chairwoman Jessica Rosenworcel says she is all for the Net Neutrality and Broadband Justice Act, which would reclassify internet access as a Title II telecommunications service and return the FCC's authority to impose net neutrality rules.

That authority went away in 2017 when the FCC under then Republican Chairman Ajit Pai reclassified ISPs as Title I information services not subject to mandatory access or potentially rate regulation rules.

"The pandemic made clear internet access is no longer a luxury, but a necessity—and that consumers don’t just need broadband, they need to be able to hold their providers to account," said Rosenworcel, who opposed the Pai reclassification when she was a commissioner in the minority.

"After all, everyone should be able to go where they want and do what they want online without their broadband provider making choices for them. I support Net Neutrality because it fosters this openness and accountability. While I trust the FCC has the authority it needs to adopt Net Neutrality rules, legislation that helps ensure it is the law of the land is welcome."

The other Democratic commissioner, Geoffrey Starks, also weighed in with his support of the bill, essentially echoing Rosenworcel.

"I have previously stated that the FCC’s 2015 Net Neutrality rules were the right approach. That approach is undergirded by a voluminous record and overwhelming public support, and it has been tested in court," said Starks. "The Net Neutrality and Broadband Justice Act would codify just that. COVID and the last few years have proven that broadband is essential for the 21st century. This legislation is an important step that will provide certainty to consumers and broadband providers, and allow everyone to move forward. It has my strong support."

Congressional Democrats are trying to step in given that whether or not the FCC could reinstate the Title II-based rules, that is not happening with the current 2-2 politically tied FCC and no near-term prospects for a third (majority) Democratic commissioner given the stalled nomination of Gigi Sohn. ■

Michael Powell, president of NCTA – The Internet & Television Association, took aim at new legislation unveiled Thursday, the latest effort to classify internet access as a Title II telecommunications service, or what Powell calls "the nuclear option."

Saying the effort would "slap an outdated and burdensome regulatory regime on broadband networks," Powell argued the result would be to damage the "mission to deploy next-generation internet technology throughout America and get everyone connected." The Biden Administration is investing tens of billions of dollars into that mission.

"Twenty years into an increasingly stale debate over net neutrality, the justifications for it seem increasingly limp," said Powell, who as FCC Chairman oversaw an initial statement of open internet principles, though a court later ruled that it was not an enforceable regime.

Also: Sen. Markey to Introduce Net Neutrality Bill

"The breathless assertions over the years that the internet is gravely threatened because ISPs would block or throttle traffic and erect toll booths to charge internet companies to reach consumers have proven hollow and unrealized," Powell continued in a statement following the bill's unveiling in a Zoom call, with plans to answer questions via Reddit. "The claim that ISPs would not invest in expanding capacity and speed wilts in the shadow of massive expansion to gigabit networks today with efforts driving rapidly to 10G networks in a few years," he argued.

Add in the "massive expansion" of wireless networks, he said, and the reality on the ground "hardly align(s) with the corroded narrative that ISPs are motivated to create scarcity on their networks to hold internet companies or consumers hostage."

"The case is particularly thin to justify the famed 'nuclear option' to reclassify carriers under Title II utility regulation which empowers the FCC with the authority to go big on new regulation."

It is the nuclear option because while Republicans have supported net neutrality rules against blocking, throttling and anti-competitive paid prioritization, doing so under Title II is a nonstarter on that side of the aisle and may not have everyone on the other side, either.

Powell said it was time to focus on building out broadband, not "taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason." 

Powell's sentiments were echoed by Jonathan Spalter, president of USTelecom. 

"Broadband providers support net neutrality and already operate under these important principles while delivering real value and performance to customers. Providers are making critical investments at record highs even as prices continue to drop. Especially during a period of inflation, this is an incredible success story," he said. "There is bipartisan support for net neutrality, but legislative proposals that would put any of this progress at risk are not the right answer. Let’s keep our focus on moving consumers’ internet experiences forward, not backward."

"Net Neutrality may be a mixed bag, but common carrier regulation would inhibit competition, private investment and innovation, and further confound the complex task of eradicating of the digital divide," said Eric Slee, VP of government affairs for WISPA, the wireless internet service providers association. 

Slee says "the specter of open access, service and rate regulation, among other Title II mandates, would result in fewer solutions and deployment growth in the very areas most in need of it."■

With no progress expected on new network neutrality rules out of a politically tied FCC anytime soon, net neutrality fan Sen. Ed Markey (D-Mass.) is introducing net neutrality legislation Thursday (July 28).

The Washington Post had signaled two weeks ago a bill was in the offing.

Markey, along with bill co-sponsors Sens. Ron Wyden (D-Ore.) and Rep. Doris Matsui (D-Calif.) is unveiling the bill on a Zoom call and Reddit Ask Me Anything (AMA) on the r/politics subreddit.

The bill is billed as "appropriately" classifying internet access as "an essential service" as well as reinstating the FCC's authority to prevent blocking, throttling and paid prioritization, which were the heart of the FCC's net neutrality rules that were eliminated under Republican FCC chairman Ajit Pai.
Also: Democrats Propose Broadband Subsidies Be Used to Promote Net Neutrality

Joining the legislators on the AMA, according to Markey's office, will be Jessica González, co-CEO of Free Press Action; and Jenna Leventoff, senior policy council at public knowledge.

Any legislative action on net neutrality rules would also be a tall order anytime soon, particularly if the bill's appropriate essential service classification means reclassifying internet access from a Title I information service back to a Title II common carrier service--which the Post suggested was the case and Markey's office's description does as well. That would mean mandatory access and at least the possibility of rate regulation, either before the fact or after.

While both Democrats and Republicans have said they agree that Congress should step in to stop the FCC pendulum swings of reclassification from Title II to Title I, depending on the political makeup of the FCC, by clarifying the FCC's authority and coming up with rules against blocking, throttling and anticompetitive paid prioritization. But Republicans are solidly against Title II-based rules, and not even all Democrats are apparently convinced that is the way to go.

Markey has been pushing for Title II reclassification ever since the Pai FCC eliminated the rules. 

The Computer & Communications Industry Association, whose members include some of the biggest of Big Tech, was applauding the bill after it was unveiled. “Many Americans only have one choice of high speed broadband access provider and thus have nowhere to turn to work, shop, study, and communicate should their service provider limit or deny their access to lawful content and services," said CCIA President Matt Schruers. "CCIA remains committed to ensuring that consumers’ access to an open Internet is not slowed, impeded, or deprioritized."■

The Biden administration’s loss in a Supreme Court ruling involving the EPA’s ability to regulate power plants could be a victory for ISPs’ arguments that the FCC was outside its regulatory lane when it reclassified internet access as a Title II common-carrier service subject to open access and other requirements and imposed net neutrality rules.

In the 6-3 opinion handed down Thursday (June 30), Chief Justice John Roberts, who penned the decision, said that in the Clean Air Act, Congress had not granted the Environmental Protection Agency the authority to devise emissions caps based on the electricity-generation shifting approach the EPA took in the Clean Power Plan.

In that opinion, Roberts talked about the limits of the Chevron doctrine, which is the courts’ customary deference to agency expertise when a statute's direction is less than crystal clear.

ISPs have long argued that Congress did not give the FCC the authority it asserted in reclassifying internet access under Title II.

“We presume that Congress intends to make major policy decisions itself, not leave those decisions to agencies,” wrote Roberts, citing then D.C. Appeals Court Judge (now Supreme Court Associate Justice) Brett Kavanaugh in his dissent from a decision by the lower court not to further consider ISPs‘ appeal of net neutrality rules back in 2015.

“Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us reluctant to read into ambiguous statutory text' the delegation claimed to be lurking there,” Roberts wrote. Roberts drew an even clearer line around Chevron. “To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to 'clear congressional authorization' for the power it claims.”

That language is music to ISP ears since it suggests that if the Biden administration was able to restore rules against blocking, throttling and paid prioritization, it might have a hard time this time around surviving a court challenge by ISPs.

There currently are no such rules, as the FCC under then-Republican chairman Ajit Pai threw them out in 2017.

President Joe Biden has supported yet another FCC about-face and return to the rules, but he has only two votes and no near-term prospects of getting the open Democratic seat on the FCC filled. 

But not everyone sees the decision as a victory for opponents of net neutrality rules.

“Having a Supreme Court that generally opposes regulation may be viewed by some as a positive for ISPs,” said former top FCC official Blair Levin, “but in the case of net neutrality and on the issues that matter to business models, the EPA decision is, at best, neutral for ISPs; more likely, it is negative for industry.”

That is primarily because Levin sees the decision as making it more likely that ISPs will have to concede states are not preempted from adopting their own rules, as the FCC under Republican Chairman Ait Pai asserted in removing the rules.

Levin explains his take in a new Street Research policy paper titled “The Next Net Neutrality Chapter: Groundhog Day Meets the Monkey’s Paw with Another Round of Losing by Winning.”

“If the ISPs argue that classification and net neutrality rules meet the threshold of being a ‘major question,’ then they are saying that Congress must take some action on the matter for the FCC to have authority to act,” the paper asserts. “That argument implies that in the event Congress has not adopted such rules, the authority of the FCC to preempt state action is significantly weakened.” ■

Internet service providers have dropped their challenge of a U.S. District Court’s ruling upholding California’s network neutrality law.

The state adopted the California Internet Consumer Protection and Net Neutrality Act of 2018 (SB 822), prohibiting blocking, throttling and paid prioritization, after the Federal Communications Commission eliminated its similar net neutrality rules and reclassified internet access as a Title I information service under Trump-era chairman Ajit Pai.

The ISPs had already lost a federal district court challenge to the law and two appeals court efforts to block enforcement.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit had denied the request of ACA Connects, NCTA, CTIA and USTelecom for an injunction of enforcement of the California law while their underlying challenge was appealed. The ISPs then asked the full 9th Circuit to review that panel decision, a request that was denied.

It is the underlying challenge to the initial district court ruling, and thus to the law, that the ISPs have now dropped, according to court documents. The suit was dismissed without prejudice, which means ISPs could refile it if they chose.

The Republican Trump administration had also challenged the California law in court, but the Biden administration withdrew that — Democratic President Joe Biden is a net neutrality rule fan.

ISPs had argued that California‘s adoption of net neutrality rules were preempted by the FCC‘s decision to roll back its own rules against blocking, throttling and paid prioritization, which had prompted California to create similar rules to fill what it saw as a regulatory void.

Also: ACA Connects Makes Its Case Against California Net Neutrality Law

The three-judge 9th Circuit panel (Judges Mary M. Schroeder, J. Clifford Wallace and Danielle J. Forrest) — one of the most liberal circuits in the federal appeals court system — had agreed with the federal district court that the FCC lacked the authority to preempt the state law because in reclassifying internet access as an information service under Title I of the Communications Act, the FCC no longer had the authority to regulate the internet in the way it did when broadband was a Title II telecommunications service.

The panel pointed to the U.S. Court of Appeals for the D.C. Circuit‘s decision upholding the FCC’s Title I reclassification, but also striking down an accompanying order asserting the reclassification preempted state net neutrality rules.

The 9th Circuit panel also had rejected the ISPs’ contention that the California law was preempted because it conflicted with the underlying FCC policy or because interstate service was the sole province of federal law.

“The ISPs threw in the towel today on their challenge to California’s net neutrality law,” said Andrew Jay Schwartzman, senior counselor to the Benton Institute for Broadband & Society, one of those defending the law before both the federal district court and the 9th Circuit. “Realizing that they could not successfully appeal the January 2022, decision of the U.S. Court of Appeals for the Ninth Circuit to the Supreme Court, the ISPs gave up. They were forced to accept what most observers had seen: in the wake of the Federal Communications Commission’s decision disclaiming interest in treating broadband access service as subject to federal regulation, the states were freed to adopt their own requirements.

“Several other states have adopted net neutrality requirements by statute or executive order. The reasoning of the 9th Circuit court allows those provisions to remain in effect as well,” he said, adding: “The end of this litigation is a boon for free speech, competition and innovation on the internet.” ■

Internet service providers in California will have to hew to new net neutrality rules, a federal appeals court signaled Wednesday (April 20).

In a one-paragraph dismissal, the 9th U.S. Circuit Court of Appeals denied cable and telco broadband operators‘ appeal of California's net neutrality law.

“The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc,” the court said in a one-paragraph ruling. “The petition for rehearing is DENIED [that all-caps emphasis was the court’s].‘

FCC Chairwoman Jessica Rosenworcel signaled it was time for nationwide net neutrality rules to return. The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law," she tweeted. "This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land."

It will almost certainly take the Senate confirming a fifth commissioner, and third Democrat, for that to happen. Currently the FCC is at a 2-2 political tie and the Republicans are no fans for the FCC's former rules.

“This is hardly a surprise,” said Andrew Schwartzman of the court decision. Schwartzman is senior counselor to the Benton Institute for Broadband and Society, and an attorney schooled in appeals court decisions and net neutrality cases. “The 9th Circuit’s unanimous panel opinion affirming the lower court’s decision allowing the new law to go into effect followed established principles. Its finding that federal law does not preclude California from adopting its own network-neutrality rules is rock solid," Schwartzman said.

California enacted the California Internet Consumer Protection and Net Neutrality Act after the Federal Communications Commission under Republican chairman Ajit Pai eliminated the federal rules against blocking, throttling and anti-competitive paid prioritization of internet access.

Also: California Net Neutrality Victory Draws Crowd

ACA Connects, NCTA–The Internet & Television Association, US Telecom and CTIA, representing cable, telco and wireless ISPs, had asked the 9th Circuit to overturn a U.S. District Court‘s decision not to grant a preliminary injunction against the law. But the three-judge 9th Circuit panel (Judges Mary M. Schroeder, J. Clifford Wallace and Danielle J. Forrest) — one of the most liberal circuits in the federal appeals court system — instead upheld the lower court.

The panel agreed with the district court that the FCC lacked the authority to pre-empt the state law because in reclassifying internet access as an information service under Title I of the Communications Act, the FCC no longer had the authority to regulate the way it did when it was considered a Title II telecommunications service.

It also pointed to the U.S. Court of Appeals for the D.C. Circuit upholding the FCC reclassification but striking down the accompanying order asserting preemption of state net neutrality rules.

The Trump Administration had challenged the California law, but the Biden DOJ withdrew that challenge last year.

The California law was passed in 2018, but its implementation was stayed pending the ultimate legal determination on the FCC's Restoring Internet Freedom Order eliminating the rules — the federal appeals court upheld the majority of the decision (Oct. 1, 2019) — as well as of various motions in the California district court. ■

A pair of powerful Democratic senators has asked the Biden administration to use the $48 billion in broadband infrastructure spending overseen by the Department of Commerce‘s National Telecommunications & Information Administration as a way to restore net neutrality rules, at least for those government-funded network buildouts.

That's according to a letter to NTIA administrator Alan Davidson from Senators Richard Blumenthal (D-N.Y.) and Ed Markey (D-Mass.).

The Federal Communications Commission, under Trump-era Republican chairman Ajit Pai, eliminated its rules against blocking, throttling and paid prioritization, plus a catch-all rule that would allow the FCC to regulate conduct that did not fall under the other rules but that it concluded might hurt an open internet. Current chair Jessica Rosenworcel, a Democrat, would almost certainly like to restore those rules but lacks a majority, and Congress has been unable to agree on legislation establishing or defining the FCC‘s regulatory oversight of the internet.

In a letter advising Davidson on how to oversee that $48 billion, most of which is going to the states for their own projects, the two senators suggested NTIA‘s oversight of the money should include promoting “safeguards for the free and open internet.”

Blumenthal and Markey want NTIA to “implement measures that promote net neutrality as it fulfills its mandates under [the Infrastructure Investment and Jobs Act],” they said. The senators argue that such a set of neutrality principles were needed to “keep the internet open to all and free of discriminatory practices by powerful broadband providers” and to prevent those providers from “blocking or slowing down customers’ internet access; charging websites to reach users at quicker speeds; and instituting other unjust, unreasonable and discriminatory practices. These rules benefit consumers, promote free speech, and enrich the economy by making the internet a fair playing field where entrepreneurs and businesses of all sizes can thrive.”

The senators did not explicitly advise NTIA to put net neutrality conditions on the money, but their signal was clear. Both Blumenthal and Markey have been vocal proponents of net neutrality rules. ■

Cable and telecom internet service providers, wired and wireless, have signaled they will be filing an appeal by Friday (February 11) of a lower court decision not to block enforcement of California's net neutrality rules, asking a full complement of U.S. appeals court judges to review a panel decision that went against them.

According to a document filed with the U.S. District Court for the Eastern District of California, "by February 11, 2022, plaintiffs/appellants will be filing a petition for rehearing en banc [by the full court] in their appeal of the Court’s February 23, 2021 Order before the 9th Circuit."

Those plaintiffs/appellants are ACA Connects, CTIA, NCTA–The Internet & Television Association and USTelecom.

Cable ISPs had asked the 9th Circuit to overturn a U.S. District Court‘s decision not to grant a preliminary injunction against the California Internet Consumer Protection and Net Neutrality Act.

ISPs had argued that California‘s adoption of rules was preempted by the FCC‘s decision to roll back its rules against blocking, throttling and paid prioritization, which had prompted California to create similar new rules of its own to fill what it saw as a regulatory void.

Also: ACA Connects Makes Its Case Against California Net Neutrality Law

Two weeks ago, the lower court decision to allow the rules to go into effect while the underlying challenge works its way through the courts was upheld by a panel of the 9th U.S. Circuit Court of Appeals.

The three-judge 9th Circuit panel (Judges Mary M. Schroeder, J. Clifford Wallace and Danielle J. Forrest) — one of the most liberal circuits in the federal appeals court system — agreed with the district court that the FCC lacked the authority to preempt the state law because in reclassifying internet access as an information service under Title I of the Communications Act, the FCC no longer had the authority to regulate in the way it did when broadband was a Title II telecommunications service.

The panel pointed to the U.S. Court of Appeals for the D.C. Circuit upholding the FCC reclassification but striking down the accompanying order asserting preemption of state net neutrality rules.

Also: California Net Neutrality Law Victory Draws Crowd

The 9th Circuit panel also rejected the ISPs’ contention that the California law was preempted because it conflicted with the underlying FCC policy or because interstate service was the sole province of the federal law. ■

Cable and telecom internet service providers are pushing back on Democratic Federal Communications Commission nominee Gigi Sohn‘s promise to recuse herself from some issues if confirmed. They‘re suggesting such an offer signals a wider problem with which issues she would or should be weighing in on, and what impact that would have on the agency and the industry.

NCTA – The Internet & Television Association and USTelecom, in separate but similar letters to the chair and ranking members of the Senate Commerce Committee, told them they had issues with Sohn‘s promised recusal from certain broadcast matters. The Commerce Committee is holding a confirmation hearing vote Wednesday (February 2) on Sohn‘s nomination. The trade groups signaled there are some cable/broadband-related issues — think net neutrality — for which her past advocacy should raise similar concerns, if there are any concerns to be raised.

Sohn has pledged not to participate in agency decisions regarding retransmission consent or copyright issues if she is confirmed to the open Democratic seat on the commission.

That stems from her advocacy on those issues when she headed Public Knowledge.

Also: Preston Padden: ‘Wall Street Journal’ Declines Letter in Defense of Gigi Sohn

In her recusal offer to FCC general counsel Michelle Ellison, Sohn promised that, for the first four years of her term as commissioner, “I will recuse myself from participation in FCC Docket No. 10-71 or any related FCC docket concerning the same issues.” But she went beyond that.

“For the first three years of my term,” she also wrote, “I will recuse myself from any proceeding before the Commission where retransmission consent or television broadcast copyright is a material issue in the Commission’s disposition of that proceeding.” She defined material issue as “one that has influence and effect on the ultimate disposition of the matter or matters considered in the proceeding.”

Sohn said she would look to the general counsel‘s office to “make any necessary determination on the application of this recusal to a particular matter.”

In his letter, NCTA president and CEO Michael Powell said that while NCTA ”strongly supports” following government ethics rules that are meant to prevent a conflict of interest or the appearance of conflict, “Ms. Sohn’s letter raises several serious concerns.”

While he said the letter should not be read as opposition to the nomination, Powell has a couple of issues with the recusal pledge.

He said it is not clear why those would be the only issues from which she would recuse herself, “given the breadth of issues in which Public Knowledge was involved” under Sohn. He said the recusal should ”logically extend“ to all the matters she advocated for at Public Knowledge, or none.

Second, he said: “Next, in the more recent years since her service at the Commission during the Obama administration, Ms. Sohn has been publicly involved on matters of direct interest to our membership. There is no logical basis for treating these matters differently from the retransmission and copyright issues for purposes of recusal.”

Arguably the main issue she was involved in after Public Knowledge was the Title II-based net neutrality rules she stumped for as a top counselor to then-FCC chairman Tom Wheeler.

More than one Washington insider has suggested that her support for Title II, and broadband operators‘ ongoing unhappiness with that advocacy, was a big reason she was getting so much pushback on the nomination from Republicans.

Also: CWA’s Christopher Shelton Calls for Gigi Sohn’s FCC Confirmation

Powell also has issues with the scope of the recusal, which could cover a wide range of proceedings, past and future, he said. Sohn signaled in her recusal letter she would not be recusing from media ownership rules. But Powell said that “the Commission will repeatedly be required to determine whether retransmission consent or copyright issues are ‘material’ to a particular docket — including media ownership proceedings where the impact on retransmission consent rates can be at issue.” Powell is a former chairman of the FCC.

In its letter, USTelecom also said it was not taking a position on the nomination, only on the recusal offer.  

“It appears highly irregular to recuse an official from any proceeding that addresses two broad, important issues because of a prior filing in a rulemaking more than a decade ago,” said USTelecom president Jonathan Spalter in his letter. “In fact, the ethics rules generally state that prior participation in a rulemaking proceeding is not a basis for recusal. Thus, it appears that Ms. Sohn’s reasoning for recusing herself would establish a new standard for FCC commissioners participating in proceedings in which they were previously active.”

USTelecom said the recusal was clearly to assuage the broadcast industry, there are other issues much broader than a single industry. “Can the FCC be confident that Ms. Sohn will not be perceived as being able to act impartially and not give preferential treatment to any private organization or individual based on her prior FCC advocacy if, as it appears from her letter, she is concerned may not be the case for certain issues?”

USTelecom asks whether Sohn‘s failure to recuse herself from other issues on which she has advocated [like Powell“s letter, Spalter does not say which, though net neutrality is the elephant in the room], will that create the appearance of benefitting one industry over others with no precedent or rational basis."

Both NCTA and USTelecom said they want Congress to at least take these into account before they vote “in order,” as Spalter put it, “for you to assess their practical implications for the adjudicatory and rulemaking functions of the FCC as well as on the continued effectiveness and impartiality of the Commission.”

“Rather than ensuring impartiality,“ Powell said, ”Ms. Sohn‘s targeted recusal has instead raised serious questions regarding transparency together with significant concerns that one industry has been singled out for special treatment to win their support for her confirmation.“ ■

Sen. Ed Markey (D-Mass.) plans to introduce legislation to reclassify broadband as a Title II service, which would subject it to common-carrier rules, restore the Federal Communication Commission‘s oversight of broadband access and reverse the Republican FCC‘s elimination of net neutrality rules.

If Democrats want a legislative net neutrality rule restoration they may have to get it done before the 2022 midterms and a potential reversal of political fortunes.

Markey said during Wednesday‘s (Nov. 17) renomination hearing for FCC acting chairperson Jessica Rosenworcel that he intended on introducing a bill to “end this ping-pong between administrations“ and make it explicit that broadband is a Title II service. Currently it is classified as a Title I information service not subject to common-carrier regulations.

Also: FCC’s Rosenworcel Pledges to Re-Examine Video Programming Marketplace

Markey said he hoped that the reclassification could be done on a bipartisan basis but also recognizes that is almost certainly a nonstarter, adding, “Perhaps that will not be the case.”

Earlier in the hearing, Sen. John Thune (R-S.D.) had said he also supported a legislative fix. Some Republicans in both the House and Senate have supported restoring net neutrality rules legislatively, just definitely not under Title II common-carrier rules that they fear could morph into mandatory access and rate regulation.

During the hearing, Rosenworcel said she still supported net neutrality rules and when pressed by Title II-backed rules opponent Sen. Roger Wicker (R-Miss.), said she would provide him with examples of how the lack of such rules hurt consumers. Wicker and others have pointed to NCTA data showing how much better the U.S., with the investment boost it argued came after the net neutrality rules were rolled back, handled the pandemic-driven broadband load versus some European countries with net neutrality rules.

Rosenworcel said the FCC always had to look at the investment record, but that the implication of the rules rollback were broader, including taking broadband oversight away from the FCC and how the pandemic demonstrated how vital broadband was, and so also how important it was to have some oversight.

But when asked by Thune whether she would commit to seeking advice from Congress before doing anything on net neutrality rules, Rosenworcel would make no such promises. She said the FCC had the authority to restore the rules. She said that if it did look to do that it would need to take into account the increased importance of broadband in the pandemic. She did pledge to work with the committee.

Markey asked her specifically if she supported reclassifying broadband as a Title II service (which subjects it to common carrier rules including mandatory access), she appeared to say yes though Markey asked if she supported reinstating net neutrality rules and restoring Title II classification and she said, “Yes, I support net neutrality.’

Markey said if his bill did not make pass, he agreed the FCC had the authority to restore Title II, though of course that would mean yet another volley of that ping-pong ball that could come back as Title I once again in a future Republican Administration. ■

Some high-profile Senate Republicans are asking the Department of Agriculture not to impose net neutrality conditions on broadband buildout subsidies, conditions that are essentially a USDA imposition of the FCC's scrapped net neutrality rules.

In its rural development broadband ReConnect grant and loan program, applicants get a preference--10 extra points in considering its application--for "applicants that commit to net neutrality."

To get the extra thumb on the scale for their application, according to the USDA, an applicant must promise that it "shall not (1) block lawful content, applications, services, or non-harmful devices, subject to reasonable network management; (2) impair or degrade lawful internet traffic on the basis of internet content, application, or service, or use of a non-harmful device, subject to reasonable network management; and (3) engage in paid prioritization, meaning the management of a broadband provider's network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity."

Those are essentially the network neutrality rules the Republican-led FCC under chairman Ajit Pai eliminated over current acting chair Jessica Rosenworcel's opposition and which Democrats want to reimpose.

In a letter to Agriculture Secretary Tom Vilsack, Sens. Ted Cruz (R-Tex.) and John Thune (R-S.D.) said it was "deeply troubling" that USDA had "suggested" it had the authority and expertise to determine what qualifies as "lawful internet traffic."

“Rather than attempting to impose monopoly-era regulations on broadband providers and politicizing the ReConnect program," they wrote. "We strongly urge you to reverse your decision to provide additional scoring points based on USDA’s determination of what constitutes ‘net neutrality'...."If USDA decides to make attempts at regulating the internet absent authority from Congress, it would lead to tremendous legal and marketplace uncertainty," they told the secretary.

"As you know, 'net neutrality' restrictions have been subject to much debate in Congress and at the Federal Communications Commission, the agency that oversees our nation’s telecommunications policy," they told Vilsack. "Any effort to impose unnecessary 'net neutrality' restrictions would be dangerous to our nation’s dynamic broadband economy and threaten future investments in broadband infrastructure."

The FCC under Pai defended eliminating the rules in part because it argued the rules had depressed broadband investment, something Democrats disputed.

Also signing the letter were Sens. Roger Wicker (R-Miss.), Marsha Blackburn (R-Tenn.), Roy Blunt (R-Mo.), Shelley Moore Capito (R-W.Va.), Deb Fischer (R-Neb.), Ron Johnson (R-Wis.), Mike Lee (R-Utah), Cynthia Lummis (R-Wyo.), Jerry Moran (R-Kan.), Dan Sullivan (R-Ala.), and Todd Young (R-Ind.).

The Administrative Conference of the U.S. (ASUC)* has recommended federal agencies take a number of steps to address the issues of mass computer generated and falsely attributed comments.

Free State Foundation President Randolph May, who is a member of the conference, also had some advice in a separate statement. 

Both the recommendations and statement were published in the Federal Register.

Mass, duplicative and falsely attributed comments were all big issues in the FCC's last public comment docket on proposed changes to net neutrality rules, something May pointed out in his comments.

ACUS describes itself as "an independent federal agency charged with convening expert representatives from the public and private sectors to recommend improvements to administrative process and procedure."

In this case, it is recommending that agencies like the FCC, who must give members of the public the opportunity to weigh in on proposed rules for the agency's consideration, find better ways to manage what can be a flood of comments in the digital age.

"Not all agencies will encounter mass, computer-generated, or falsely attributed comments. But some agencies have confronted all three, sometimes in the same rulemaking," ACUS said, and could have been talking about the FCC net neutrality comment docket.

Among the recommendations are for agencies to 1) "welcome" the filing of mass, "identical or substantively identical," comments as a single comment over multiple signatures; and 2) "consider alternative approaches to managing the display of comments online, such as by posting only a single representative example of identical comments in the online rulemaking docket or by breaking out and posting only non-identical content in the docket," to make it easier to navigate the system.

But if an agency does do that, it should include the multiple comments in any reported total of comments received.

Also Read: FBI Investigating FCC Docket

When it comes to falsely attributed comments, ACUS suggests that agencies should give those to whom the comments have been falsely attributed a chance to have those comments anonymized or removed from the online docket. It should also note in the docket what actions it has taken.

ACUS did not say the FCC can't take into account falsely attributed comments when making a decision, but says it should note any such comments it relied on. Beyond that, it said the FCC should inform the public generally about its policies concerning posting and use of mass generated and falsely attributed comments.

In his comments, Randolph May said he hoped that ACUS would next tackle the issue of the appropriateness of curbing the kind of mass computer-generated filings that turned the net neutrality docket into a a comment "nuclear" option that deluged the FCC with 22 million comments that overwhelmed the system and "often rendered the ability to search for comments that might possibly contain relevant data and information well-nigh impossible."

May said he recognized the value of widespread participation by interested parties, but that there ought to be a way to discourage the kind of comment war that erupted in the FCC's net neutrality docket.

He also pointed out that the comment war suggested both sides thought that the volume of comment should influence the outcome. As an independent agency, the FCC is charged with making its decisions in the public interest using its expert judgment, not based on how many people are prompted or able to comment on either side.

Sen. Roger Wicker (R-Miss.), ranking member of the House Communications Subcommittee, has introduced the Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard (PRO-SPEECH) Act.

He said it will provide "baseline protections to prohibit Big Tech from engaging in unfair, deceptive, or anti-competitive practices that limit or control consumers’ speech."

Republicans, including Wicker, have consistently argued that Silicon Valley has a bias against conservative speech that it expresses through blocking and throttling speakers.

Also Read: Wicker Says Congress Should Curb Big Tech

"My bill would put safeguards in place to preserve internet freedom, promote competition, and protect consumers from these blatantly biased practices," said Wicker. “The big social media companies continue to abuse their market power by censoring content, suppressing certain viewpoints, and prioritizing favored political speech,” he added, saying Congress needed to step in to make sure all viewpoints can be heard.

According to Wicker's office, the bill would include a net neutrality provision, preserving the ability of web users to "access lawful content, applications, services, or devices that do not interfere with an internet platform’s functionality or pose a data privacy or data security risk to a user."

It would also:

1. "Prohibit internet platforms from taking any actions against users based on racial, sexual, religious, partisan, or ethnic grounds;

2. "Prohibit large internet platforms from blocking or discriminating against competing internet platforms by declaring such actions presumptively anti-competitive;

3. "Require an internet platform to disclose to the public accurate information regarding the platform management practices, performance characteristics, and commercial terms of service of any app store, cloud computing service, operating system, search engine, or social media network it owns; and

4. "Authorize the Federal Trade Commission to enforce the Act under Section 5 of the FTC Act notwithstanding any other provision of law."

FCC Commissioner Brendan Carr, who has called for reform of Big Tech's Sec. 230 immunity from civil liability for their content moderation practices, saying they are censoring conservatives, applauded the bill.

"While Section 230 reform remains necessary, it is not sufficient standing alone to address Big Tech’s discriminatory conduct," he said. "Section 230 reform must be paired with a broader effort to apply anti-discrimination requirements to large internet platforms." 

Senator Wicker’s legislation would take this important next step in the ongoing efforts to hold Big Tech accountable.

New York State has completed its investigation into comments in the FCC's net neutrality rule proceeding, concluding that millions of fraudulent comments were submitted by lead generators employed by broadband companies, but the office of Attorney General Letitia James said it found no evidence those companies had direct knowledge that the lead generators were engaging in fraud.

The three companies generating the bogus comments — Fluent, Inc.; Opt-Intelligence, Inc.; and React2Media, Inc. — agreed to pay $4.4 million in penalties and disgorgement.

Nonetheless, the report was a scathing condemnation of broadband companies, as indicated by the report's title, "How U.S. Companies & Partisans Hack Democracy to Undermine Your Voice."

The report did conclude that the broadband industry funded a "secret campaign" to generate millions of comments, saying it was to provide "cover" for their support of the FCC's repeal of net neutrality rules. "The effort was intended to create the appearance of widespread grassroots opposition to existing net neutrality rules, which — as described in an internal campaign planning document — would help provide “cover” for the FCC’s proposed repeal," the report said.

Also Read: AG Letitia James: Internet-Related Complaints Top New York List

Despite the finding, the broadband companies had broken no laws. The report said their conduct raised "serious concerns," including that the campaign organizers at those broadband companies "ignored several significant red flags as to the authenticity of the comments that were generated and the integrity of the process."

They said lack of oversight of the lead generators provided a fertile field for fraud.

"Instead of actually looking for real responses from the American people, marketing companies are luring vulnerable individuals to their websites with freebies, co-opting their identities, and fabricating responses that giant corporations are then using to influence the polices and laws that govern our lives," said James of the report.

Her office also had some advice for the future, including to:

1. "Advocacy groups to take steps to ensure they have obtained valid consent from an individual before submitting a comment or message to the government on their behalf,
2. "Agencies and legislatures that manage electronic systems that receive comments and messages to hold advocacy groups and their vendors more accountable for the comments they submit on behalf of individuals,
3. "Lawmakers to strengthen laws to deter the submission of deceptive and unauthorized comments to the government, and
4. "Agencies to adopt technical safeguards to protect against unauthorized bulk submissions using automation."

Three years ago, then New York State Attorney Eric Schneiderman launched an investigation into whether comments wrongfully used New Yorker's identities without their knowledge or consent.

That came after a Pew Research report found that many of the 21.7 million comments "seemed to include false or misleading personal information."

House Republicans have fired a shot across the net neutrality regulation bow before that ship has sailed.

According to a copy of a letter to FCC acting chair Jessica Rosenworcel provided to Multichannel News, Energy & Commerce Committee ranking member Cathy McMorris Rodgers (R-Wash.) and Communications Subcommittee ranking member Bob Latta (R-Ohio), joined by the Republican E&C members, warned against imposing "stringent net neutrality regulations" that could result in subs "losing their internet offerings."

The FCC under Rosenworcel has already signaled a possible different outcome as it considers petitions to reconsider the deregulation of internet access under the previous administration.

Citing the pandemic, they said broadband providers had responded by improving networks and offering free or reduced price services, adding "[W]e urge you not to impose stringent net neutrality regulations that may result in Americans losing their internet services."

The suggestion that internet regulation could cost customers service is a reference to what they say was California's "bungled" attempt to reregulate internet access after the Republican-led FCC--under chairman Ajit Pai--reclassified that access as a Title I information service not subject to common carrier regs and eliminated the rules against blocking, throttling and paid prioritization imposed by his Democratic predecessor.

"Almost immediately after California enforced this law, two Internet providers reportedly told the Department of Veterans Affairs (VA) that the law could force them to end [zero rating] arrangements with U.S. wireless carriers that enable veterans to access a free, mobile telehealth app called VA Video Connect," they wrote. Zero rating opponents Free Press countered that the claim was "premature, cynically opportunistic" and an attempt to "scare the Biden FCC from reinstating the federal rules and reclassifying broadband as a telecommunications service — which common sense dictates it is."

They called out Rosenworcel for applauding the Biden Justice Department's decision to pull the plug on the Trump Administration's lawsuit against the California law, a law Rosenworcel said had filled the void created by the Pai FCC's net neutrality deregulation, which Rosenworcel had strongly opposed. "There was no void to fill, as oversight by the Federal Trade Commission, DOJ, and state attorneys general ensured that ISPs would fulfill their promises not to block or throttle traffic or otherwise engage in anticompetitive conduct."

While Rodgers and Latta said they agree that blocking, throttling and anticompetitive behavior should be prevented, they said that can happen with burdensome overregulation, both from the FCC and from states.

Whoever becomes the FCC chair, Rosenworcel or another Biden pick, they are expected to restore net neutrality rules. Republicans are OK with that, but not with doing so by reclassifying internet access as a Title II service subject to mandatory access and potentially rate regulation.

Also Read: Net Neutrality Remand Draws Crowd

But in any case, no action by the FCC can happen until a third Democrat is nominated and confirmed. At the moment it is a political tie, 2-2, and neither Republican is going to be voting to reclassify ISPs as common carriers.

The Biden Administration's COVID-19-related broadband subsidy programs have signaled that the definition of broadband availability should include competition and price, which has Republicans fearing that Title II could be used to justify regulating price or opening networks to competitors.

As expected, the Biden FCC has asked a federal appeals court to hold off on hearing a challenge to the Trump FCC's response to a court remand of its Restoring Internet Freedom net neutrality dereg order, suggesting that challenge could ultimately be moot depending on how the new FCC deals with multiple petitions to reconsider that response.

It is not unusual for a new FCC to review previous decisions, though changing them will likely have to wait until a third Democrat is named to the commission, currently tied at two Democrats and two Republicans.

Also Read: Net Neutrality Remand Draws Crowd

Back in October, the FCC under Republican Chairman Ajit Pai voted 3-2 along party lines to tell a federal court that the commission's Restoring Internet Freedom (RIF) order promotes public safety, facilitates infrastructure deployment, and continues to allow the FCC to subsidize broadband internet access service.

The RIF order reclassified internet access as a Title I information service, eliminated rules against blocking, throttling and paid prioritization, and eliminated a general conduct standard meant to reach conduct not covered under those three rules. The FCC said that the benefits of reclassification and eliminating the rules and a return to "light touch" regs outweighed any "limited," potential, adverse effects.

That decision was challenged in court by four different parties--but that was then and the FCC is under new, Democratic management, headed by acting chairwoman Jessica Rosenworcel, who was one of the two dissenting votes on the remand and definitely does not agree that dereg outweighs the potential adverse effects, which she has signaled are more than potential given that she said the decision did not adequately address the harms to public safety, infrastructure deployment and the needs of low-income households.

"Only one of the three Commissioners who voted for the Remand Order [Brendan Carr] remains on the Commission, while two of the remaining Commissioners dissented, and one of those dissenters has since become the Acting Chairwoman of the Commission [Jessica Rosenworcel]," the FCC told the U.S. Court of Appeals for the D.C. Circuit, which has principal jurisdiction over challenges to FCC decisions. "In view of these circumstances, placing this case in abeyance to allow time for the newly constituted Commission to consider the petitions for agency reconsideration would be appropriate."

And the FCC went further, suggesting how that reconsideration might affect the legal case: "If the Commission were to grant the petitions for reconsideration in whole or in part [as it almost certainly will], the agency’s action could significantly alter or render moot the issues raised by the petition for review in this case."

The FCC's motion to the court to hold the case in abeyance was unopposed.

Local elected officials and some community organizations from across the country have written to acting FCC chair Jessica Rosenworcel asking the FCC to investigate digital "redlining" as well as to restore the Title II classification of internet access service, suggesting both will help close the racial justice divide.

Also Read: Rep. Clarke Preps Digital Civil Rights Bill

The first is doable, but while they definitely have a willing ear in Rosenworcel on both issues, the latter will have to wait until President Joe Biden names a third Democrat to the FCC since it is currently at a 2-2 political tie, with the Democrats all for the return of Title II and the Republicans all against it, as it were.

On the digital equity front, Rosenworcel has strong support from fellow Democrat Geoffrey Starks. At the State of the Net Conference in January, he said that the digital divide has morphed during COVID-19 to a monstrous divide that leaves people of color disproportionately on the wrong side. "This cannot stand," he said, adding that the country can no longer put off the hard work of digital equity. "This is the time. This is the moment."

Also Read: FCC's Starks Says Digital Disparities Must Not Stand

The letter Tuesday (March 16), from 98 councilmembers, board members, supervisors and others from Maryland to California, Florida to Maine, asked Rosenworcel to create a commission focused on ending digital 'redlining,' the exclusion of low income and communities of color from access to the digital connectivity and tools that are the current currency of daily life, particularly in a pandemic.

They also called on her to "act quickly" to reinstate the Title II authority under which the FCC could restore net neutrality rules against blocking, throttling, paid prioritization, and other things proponents for strong rules say could hurt internet access.

"In line with President Biden’s commitment to equity, we believe that internet access is a racial justice issue," they told Rosenworcel.

The legislators, who almost certainly were mostly, if not all, Democrats, said that large ISPs have profited from the pandemic and preyed on the vulnerable, citing as an example the introduction of data caps by Comcast, calling it a regressive tax on the poor and communities of color.

Also Read: Groups Push Digital Civil Rights

They called for a prohibition on data caps altogether and said that restoring open internet rules would result in equitable learning opportunities and access. "[M]ore oversight through hearings on digital redlining, coupled with net neutrality protections, will ensure that communities like ours will have the freedom to thrive," they said.

Sen. Ed Markey (D-Mass.) will reportedly introduce legislation in the next several weeks to reinstate the Title II classification for internet access providers as a way to restore the FCC's authority and the rules against blocking, throttling and paid prioritization. 

Also Read: Court Clears Way for California Net Neutrality Law

Democrats want to use new rules to get rid of "unfair data caps" as well, and argue reclassification will provide "firmer legal ground" for funding broadband through the Universal Service Fund.

The FCC in 2017 eliminated its net neutrality rules and effectively ceded authority over internet access to the Federal Trade Commission with the exception of some reporting requirements about service.

Also Read: Net Neutrality Push Is Coming to Shove

Sen. Markey has long pledged to restore the Title II designation and bright-line rules eliminated by the FCC under Republican Chairman Ajit Pai. For now, doing so will require Congressional action since the FCC is at a 2-2 political deadlock and neither Republican appears keen on restoring those regs.

Markey was joined by other Democratic legislators--including House Communications Subcommittee Chairman Mike Doyle (D-Pa.)--and net neutrality activists Tuesday (March 2) in signaling the push was on for new net neutrality regs.

 “Once we have three Democrats in place at the FCC, I will strongly urge the Commission to reverse the Trump FCC’s wrongheaded decision and restore net neutrality and the FCC’s authority over broadband," Markey said. "And in the coming weeks, I also plan to reintroduce legislation to do the same by statute.”  

 Title II is the common carrier designation that could allow the FCC to regulate rates or take other regulatory steps to insure nondiscriminatory access to the internet. The Dems and their activist allies argue that it is necessary to treat broadband like a utility (they use the term "essential service"), a point they say has been made more pressing during COVID-19.

Also Read: Comcast CEO Roberts Seeks More ‘Permanent’ Footing for Net Neutrality Laws

Both Republicans and Democrats (and some ISPs) have argued for legislation clarifying the FCC's authority over broadband, with some Republicans even supporting a return of bright-line rules, but the Republicans and ISPs only under a non-Title II regime, thus removing the threat of mandatory access and rate regulation.

Democrats generally argue that Title I is a non-starter and that only the Title II common carrier authority will secure an open internet.

Net neutrality fans inside the Beltway are celebrating a Judge's decision to allow California's net neutrality law to go into effect.

The law passed the California legislature, but enforcement had been delayed until the legal challenges from the Trump Justice Department--the Biden Justice Department withdrew its challenge--and ISPs.

“This is a long-overdue victory for the open internet and California’s right to protect consumers online," said Joshua Stager, senior counsel at New America's Open Technology Institute. "Sacramento legislators passed a net neutrality law in 2018 to ensure that Californians get the internet service they paid for without unreasonable interference from their provider. We look forward to this law finally taking effect to help the millions of Californians who need the open internet to get through ongoing public health, economic, and climate crises. It’s time for the federal government to restore net neutrality for all Americans.”

“With this ruling, we hope the law can finally see the light of day in California and begin protecting consumers online immediately. This ruling is a win for both consumers and the open internet," said Jonathan Schwantes, senior policy counsel for Consumer Reports. "This will hopefully encourage other states to follow California’s lead to explore their own net neutrality laws until the federal government can move forward with a national set of net neutrality rules, either through legislation or regulation.”

"Telecom lobbyists used every dirty trick in the book to try to kill off California’s gold standard net neutrality law," said Evan Greer, deputy director of Fight for the Future. "And they still lost. That’s because net neutrality is one of the most popular policies of the last century. Now we’re one step closer to net neutrality being the law of the land. The Biden administration should act quickly to appoint a net neutrality champion (with no ties to the telecom industry) to the FCC, and Congress should pay attention to what happened in California, and ensure that any future legislative protections are at least as good as California’s law..."

Also Read: OTI Says DOJ Should Drop California Net Neutrality Law Challenge

Greer said she didn't want "our cable and phone companies controlling what we can see and do on the Internet, or killing off startups to solidify the monopoly power of Big Tech giants."

Interestingly, it is Big Tech edge players like Google and Facebook and Twitter that are currently Congress' biggest focus when it comes to killing off startups and consolidating monopoly power, rather than the ISPs who historically drew those criticisms.

A California judge will allow the state's net neutrality law to go into effect, according to multiple reports on the ruling, which was handed down from the bench following oral argument Tuesday (Feb. 23).

The Biden Department of Justice had dropped its participation in a challenge to the law--the enforcement of which was held in abeyance until the legal challenge was resolved--but ISPs continued to press their case.

Also Read: OTI Says DOJ Should Drop California Net Neutrality Law Challenge

The government had been seeking a preliminary injunction to block California from being able to enforce the law. ACA Connects and other ISP organizations had filed motions to put the California law on hold.

ISPs had argued that California's adoption of rules was preempted by the FCC's decision to roll back its rules against blocking, throttling and paid prioritization, which had prompted California to similar new rules of its own to fill that regulatory void. The new law was put on hold pending the outcome of the legal case, which District Judge John A. Mendez rendered.

Also Read: Comcast CEO Roberts Seeks More ‘Permanent’ Footing for Net Neutrality Laws

"I don’t think that most of the attorneys in the case expected a ruling from the bench today," said Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society, which was one of the amici curiae in the case. "This is a huge victory for net neutrality, and bodes well for other states that have adopted net neutrality requirements," he said.

"It became clear during the hearing that Judge Mendez understood that arguments contending that California is precluded from enforcing its own net neutrality requirements could not surmount the heavy burden of showing clear Congressional intent to preclude states from enforcing their own net neutrality requirements in the face of the Trump-era FCC’s decision declaring a policy of 'non-regulation.'" 

The FCC is expected ultimately to reverse that decision once it has a majority, unless a Democratic Congress beats it to the punch with national legislation clarifying the FCC's internet regulatory authority.

The California law was passed in 2018, but its implementation was stayed pending the ultimate legal determination on the FCC's Restoring Internet Freedom Order eliminating the rules--federal appeals court upheld the majority of the decision (Oct. 1, 2019)--as well as of various motions in the California district court.

The return of rules against blocking, throttling and paid prioritization is building momentum given that Congress is in the hands of Democrats, most of whom opposed deregulation of internet access, and the FCC is currently being helmed by Democrat Jessica Rosenworcel, who strongly opposed deregulation under the previous chairman.

That could mean the return of rules that internet service providers argue limit their ability to create innovative business models or invest in the buildouts that will help close the digital divide or upgrade service.

Even as the Big Tech content giants like Amazon, Google, Facebook and Twitter have taken up much of the regulatory spotlight, the Democrats’ return to control of the government has brought re-regulating ISPs back into the picture. It’s likely both ISPs and social media companies are in for some tough new oversight.

House Energy & Commerce Committee chairman Rep. Frank Pallone (D-N.J.) said restoring rules, and getting the FCC back in the business of regulating internet access, will be high on his agenda.

“Net neutrality is about more than a prohibition on blocking, throttling and paid prioritization,” Pallone told a virtual audience of competitive carriers and computer companies. “By repealing net neutrality, the Trump FCC abdicated the FCC’s authority over this essential service. That’s not good for consumers or small businesses, for economic production or for free speech. This wrong must be righted.”

Seeing that re-regulatory handwriting on the wall — possibly including mandatory access and rate regulation, given the pandemic’s emphasis on broadband for all — advocates for the old rules have come out in numbers to call for their return.

In a petition for reconsideration from Common Cause, the Benton Institute for Broadband & Society, the National Hispanic Media Coalition, New America’s Open Technology Institute, the United Church of Christ, OC Inc. and Free Press — all of which opposed the FCC's Restoring Internet Freedom order under Trump-era chairman Ajit Pai — called for reimposition of the rules, tying that to the pandemic.

The petition argues deregulation "weakened the FCC’s legal authority to provide low-income households with affordable broadband through the Lifeline program at a time when the COVID-19 pandemic has made the need for connectivity greater than ever."

In a separate petition, competitive carriers and computer companies echoed the call for restoring the rules, but tied it to another hot-button issue: public safety.

The Biden administration has also withdrawn the previous Justice Department’s challenge to a tough new California net-neutrality law, though ISPs continue to challenge the measure, which was adopted in response to the FCC’s RIF deregulation.

Rosenworcel said of that decision: “Washington is listening to the American people, who overwhelmingly support an open internet, and is charting a course to once again make net neutrality the law of the land.” 

More fans of network neutrality rules have asked the FCC to return its bright-line rules against blocking, throttling and paid prioritization, saying eliminated those rules has negatively impacted connectivity at a time--during the COVID-19 pandemic--when connectivity is a key public interest priority.

That came in a petition for reconsideration from Common Cause, the Benton Institute for Broadband & Society, the National Hispanic Media Coalition, New America’s Open Technology Institute, the United Church of Christ, OC Inc., and Free Press, all of whom opposed the FCC's Restoring Internet Freedom order under former FCC chairman Ajit Pai, which eliminated those rules and essentially took the FCC out of the internet access regulation business.

Also Read: Net Neutrality Focus Shifts to States, Hill

The petition followed one filed by INCOMPAS last week.

The FCC under Pai reclassified ISPs as Title I information services not subject to mandatory carriage or, potentially, rate regulations, and eliminated those rules, imposed by the previous Democratic FCC, as well as a catch-all rule that would allow the FCC to regulate conduct that did not fall under the other rules but that it concluded might hurt an open internet.

Also Read: Charter Seeks to Charge for Interconnection

The petition argues the FCC's deregulation "weakened the FCC’s legal authority to provide low-income households with affordable broadband through the Lifeline program at a time when the COVID-19 pandemic has made the need for connectivity greater than ever."

They want the FCC, now headed by an acting Democratic chair, Jessica Rosenworcel, who voted against the deregulation, to reinstate broadband as a Title II service, the FCC's "strongest legal authority - to support affordable broadband," they say. That is because Title II common carrier regs include mandatory access rate regulation authority.

The Biden Justice Department has dropped the Trump Justice Department's challenge to California's net neutrality law.

The court issued a one line statement: "Plaintiff the United States of America, by and through its counsel, hereby gives notice of its voluntary dismissal of this case."

Congressional Democrats had pressed the new administration to drop their support of the legal challenge.

Also Read: OTI Says Court Should Deny Blocking California Law

DOJ under Trump had argued that the FCC elimination of rules against blocking, throttling and paid prioritization preempted California's attempt to reinstate them in that state, an argument ISPs made in joining DOJ in that legal challenge before the U.S. District Court for the Eastern District of California.

Attorney Andrew Schwartzman, who backs the California law, said DOJ's dropping of the case was no surprise--given the change in administration and view of net neutrality rules, which Democrats favor--but that it was important because "the views of the United States weigh heavily on preemption questions of the kind raised here."

A hearing on a motion for preliminary injunction in the case, now absent DOJ representatives, is scheduled for Feb. 23. 

Also Read: Judge Moves California Net Neutrality Law Hearing

"Those of us who support the California law believe that challenges to it lack a valid basis," said Schwartzman. "In light of the fact that the FCC disclaimed any jurisdiction over broadband internet service, the FCC's claim of a policy of "non-regulation" leaves the states free to regulate.

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization. The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But in 2018, California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

Justice then filed suit in support of the FCC, as did ISPs.

Acting FCC chairwoman Jessica Rosenworcel, who had voted against the FCC order eliminating net neutrality rules, praised the move.

“I am pleased that the Department of Justice has withdrawn this lawsuit," she said in a statement. "When the FCC, over my objection, rolled back its net neutrality policies, states like California sought to fill the void with their own laws. By taking this step, Washington is listening to the American people, who overwhelmingly support an open internet, and is charting a course to once again make net neutrality the law of the land.”

“We applaud the DOJ for dropping this harmful legal challenge," said Joshua Stager, senior counsel at New America’s Open Technology Institute. "The Trump administration initiated the lawsuit as a frontal attack on both net neutrality and California’s right to protect consumers. The Biden administration must restore net neutrality, and dropping this case is a good start.

“In 2018, Sacramento legislators passed this law to ensure that Californians get the internet service they paid for without unreasonable interference from their internet provider. That law is needed now more than ever as millions of Californians rely on internet service to get through simultaneous public health, economic, and climate crises. The Department of Justice never should have stood in the way of this law.”

INCOMPAS, whose members include competitive carriers and computer companies, has petitioned the FCC to restore its net neutrality rules.

In a petition for reconsideration, the association told the FCC that it needs to reclassify internet access services (ISPs) as Title II telecommunications service--subject to common carrier rules--and reissue the rules against blocking, throttling and paid prioritization, which were eliminated by the FCC under chairman Ajit Pai.

Current acting chair, Jessica Rosenworcel, is a fan of the Title II designation and voted against the FCC's reclassification to Title I and elimination of the rules.

Also Read: FCC's RIF Remand Draws a Crowd

The FCC under Pai reclassified ISPs as Title I information services not subject to mandatory carriage or, potentially, rate regulations, and eliminated those rules, imposed by the previous Democratic FCC, as well as a catch-all rule that would allow the FCC to regulate conduct that did not fall under the other rules but that it concluded might hurt an open internet.

The reclassification would continue the pendulum swing between rules and no rules, depending on whether a Republican or Democrat was chairman. Democratic chairman Julius Genachowski did come up with compromise rules, though ones not grounded in Title II. A court threw those out after Verizon, not part of the compromise, challenged them. 

The pendulum arguably began swinging after then-FCC chairman Michael Powell proposed net neutrality  principles of openness and accessibility, but which a court found were not enforceable.

Also Read: FCC Defends ISP Dereg in Court

INCOMPAS said the rules needed to be returned because the FCC, in eliminating them, did not sufficiently address concerns about their impact on public safety communications and access to poles, ducts and conduits, which require Title II for the FCC to assert its authority over.

INCOMPAS also says the FCC needs to reassert its jurisdiction over interconnections, too, which the Pai FCC un-asserted through its Restoring Internet Freedom order.

Perhaps no chief executive lobbied harder than Comcast’s Brian Roberts for the FCC’s 2017 rollback of net neutrality rules under Trump-appointed FCC chief Ajit Pai.

Now that Biden appointee Jessica Rosenworcel is running the agency, and another reversal of course on net neutrality seems likely, Roberts was asked during Comcast’s fourth-quarter earnings call Thursday about the fast-shifting political winds. 

Not surprisingly, Roberts still favors a “light-touch” approach to rule making. However, he seemed willing to accept a more lasting outcome that wound’t shift every time the White House changed its political party affiliation. 

“If there's a way to codify that and perhaps put this issue in a permanent, more consistent place, that's certainly a possibility,” he said.

Overall, he said there’s nothing new regarding Comcast’s philosophy on the matter. 

“We’ve managed to successfully work with different administrations, with different regulatory perspectives around the broadband business,” Roberts said. “And our view is obviously strongly felt that the long-standing light-touch regulation has worked since President Clinton created that classification that hence reduces regulatory risks for investors and allows the company to invest more and that paid dividends unbelievably all during COVID.”

As he always has, Roberts insisted that Comcast abides by net neutrality. 

“We were never asked to down-res any services,” Roberts said. “And content providers and consumers really benefited. And that wasn't universally the case around the globe with different broadband regimes. But we do believe in net neutrality and have--we're not going to discriminate, block, throttle on some of the other principles that we've committed to.”

The Judge hearing the Department of Justice's challenge to California's net neutrality law has rescheduled a Jan. 26 hearing, citing the caseload of the court and the complexity of the issue.

Also Read: House Dems Press Biden AG Nominee to Drop Suit

The new date is Feb. 23, which will give the new Biden Justice Department, which takes over after the Jan. 20 inauguration, a chance to decide whether it wants to continue the challenge. 

The court made it clear it wanted an answer to that pressing question. "The Court orders the parties to meet and confer (after January 20, 2021) and to file a status conference statement by February 9, 2021, informing the Court whether the United States of America intends to pursue this case further, or whether, upon review by the Biden Administration, it will file a stipulation or motion to dismiss this lawsuit. 

Also Read: California Committee Approves Tough New Net Neutrality Bill

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization. The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But in 2018, California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

The FCC, backed by Justice, filed suit, as did ISPs.

The law's implementation was stayed pending resolution of those legal challenges.

Rep. Anna Eshoo (D-Calif.) and a baker's dozen Democratic members of the California congressional delegation have called on attorney general nominee Merrick Garland to make net neutrality one of his first orders of business in the new post.

Garland has been a judge on the U.S. Court of Appeals for the D.C. Circuit, which has principle oversight of FCC decisions like the elimination of net neutrality rules.

Specifically, the legislators want Garland to withdraw the government's lawsuit against California net neutrality law ASAP when he takes over after Inauguration Day.

Also Read: Court Should Deny Blocking of Net Neutrality Law

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization. The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But in 2018, California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

The FCC, backed by Justice, filed suit, as did ISPs.

The law's implementation was stayed pending resolution of those legal challenges.

"In September 2018, then-Governor Jerry Brown signed into law the SB 822, the strongest net neutrality law in the country. The Trump Department of Justice (DOJ) sued to overturn California’s law hours later, and associations of telecommunications providers sued within days," the legislators wrote. "Parties to the case agreed to put the case on hold until Mozilla v. FCC was resolved. In that case, the Court of Appeals for the D.C. Circuit vacated the part of the Federal Communications Commission (FCC)’s 2018 Restoring Internet Order (RIF) that preempted state net neutrality laws.

Also Read: California Committee Approves Tough New Net Neutrality Bill

“With the new Administration, we have an opportunity to restore the damage the Trump FCC has done to the free and open internet in the last four years,” said Eshoo. “As the pandemic surges, it is more important than ever that we restore the policies to ensure families have full access to an open and reliable internet.”

In addition to Eshoo, signing on to the letter were Democratic California House members Doris Matsui, Jerry McNerney, Mike Thompson, Jackie Speier, Barbara Lee, Mark Takano, Jimmy Panetta, Ted Lieu, Ro Khanna, Jared Huffman, Eric Swalwell, and Mike Levin.

The U.S. District Court for the Eastern District of California is requiring oral arguments in efforts by the government and ISPS to block California from enforcing its net neutrality law.

The court has set a hearing date of Jan. 26.

Related: Net Neutrality Focus Shifts to States, Hill

The state enacted the law after the FCC's Restoring Internet Freedom (RIF) order repealed net neutrality rules against blocking, throttling and paid prioritization. The RIF order included a preemption of state regs that conflicted with that decision. California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void. 

The California law was passed in 2018, but its implementation has been stayed pending the the court decision on the the RIF order--the U.S. Court of Appeals for the D.C. Circuit upheld the majority of the decision --as well as various motions in the California district court.

In separate filings to the California court, four communications trade associations and the U.S. Department of Justice filed for a preliminary injunction to block California’s net neutrality law because of the FCC preemption of state laws. Such state measures “impose burdensome requirements on ISPs” and impair broadband access “by requiring each ISP to comply with a patchwork of separate and potentially conflicting requirements” in various areas, said the four groups in their joint filing: NCTA – The Internet and Television Association, ACA Connects – the American Cable Association, and CTIA – The Wireless Association and USTelecom – The Broadband Association.

The suits come a month after Mozilla and other mostly-California-based tech firms decided not to pursue their appeal of the FCC net neutrality order, and the appeals court's decision to uphold most of it, to the Supreme court.

House Democrats are accusing the FCC of rushing a decision on an order responding to some issues a federal court had with the commission's elimination of net neutrality rules. 

The legislators suggest FCC chair Ajit Pai is trying to get the decision out the door before an election that could well dethrone the FCC's current Republican majority.

Related: Eshoo Calls on FCC to Pull Remand Order

The commission is preparing to vote Tuesday (Oct. 27) on its answer to a remand by the U.S. Court of Appeals for the D.C. Circuit. The order is expected to be approved in a party line vote by that Republican majority.

Related: GOF FCC KO's Title II

“Chairman Pai is at it again, pushing his anti-consumer agenda – this time on the eve of an historic election. Americans deserve strong Net Neutrality protections, but this FCC is rushing ahead of November 3rd to further cement its efforts to deprive Americans of these critical protections," said Energy and Commerce chair Frank Pallone, Jr. (D-N.J.) and Communications Subcommittee chair Mike Doyle (D-Pa.). "At a time when internet connectivity is especially critical for students, parents, first responders, [and] low-income and rural Americans, the FCC should be protecting American families, not undermining them. Time and again, this FCC has put industry interests before those of consumers, and its actions this week are no exception.”

The court upheld the bulk of the agency's decision to reclassify ISPs as Title I information service providers that aren’t subject to Title II common-carrier regulations, and to eliminate the rules against blocking, throttling, paid prioritization, as well as a general conduct rule. The court said the FCC was within its authority to take those actions and that the decision was not arbitrary and capricious, but it said the FCC had not sufficiently explained the impact of that deregulation on public safety, the regulation of pole attachments and its Lifeline broadband/phone subsidy program. 

Related: INCOMPAS Says Public Safety Is at Risk from Deregulated ISPs 

The FCC's response was essentially that 1) it followed naturally from the RIF order that public safety would be promoted (it added the caveat that "even if there were some adverse impacts on public safety applications in particular cases—which we do not anticipate—the overwhelming benefits of Title I classification would still outweigh any potential harms"); 2) that the benefits of light-touch regulation under an information service definition of broadband access--rather than the telecommunications service definition of the previous FCC--outweighs any potential negative effects of losing the pole attachments rights under that telecom service definition; and 3) that it has legal authority to continue to provide Lifeline subsidies under the reclassification.

In all three cases, the FCC argues in the remand order that there is no basis to alter its conclusions in the RIF order. Those were that it needed to reverse the previous, Democratic-led, FCC's "misguided and short-lived utility-style regulation of the Internet and return to the light-touch regulatory framework for broadband Internet access service that facilitated rapid and unprecedented growth for almost two decades.

Rep. Anna Eshoo (D-Calif.) wants FCC Chaiman Ajit Pai to pull next week's public meeting item responding to a court remand of a portion of the FCC's Restoring Internet Freedom (RIF) order. 

Related: Court Upholds Most of FCC ISP Dereg

The RIF order lifted bans on blocking, throttling and paid prioritization.

The court asked the FCC to better explain the impact of the FCC's internet access deregulation on "(1) public safety; (2) the regulation of pole attachments; and (3) universal service support for low-income consumers through the Lifeline program."

Eshoo is particularly concerned about the public safety issue.

"California is experiencing the most horrific wildfire season in history, and I’m deeply concerned that the FCC is ignoring its mandate to protect public safety as required by statute and by a federal court,” Eshoo wrote Pai according to a copy of the letter. “On October 6, 2020, you published a proposal for the Commission to consider on October 27, 2020, that essentially says the FCC’s 2018 repeal didn’t actually miss anything with respect to public safety. This proposal ignores what the D.C. Circuit highlighted as serious shortcomings of the back in 2018 that the throttling of its data while it tried to fight the Mendocino Complex Fire was a threat to life, a complaint that was included in net neutrality activists' appeal of the FCC's net neutrality rollback."

Related: NCTA Says RIF Order Is on Firm Ground

Eshoo is unlikely to get her wish that the item be pulled.

Pai said, in explaining the FCC response to the remand teed up for the October meeting, the item addressed the court's issues and "affirms that the FCC stands by the Restoring Internet Freedom Order, consistent with the practical reality consumers have experienced since December 2017 of an internet economy that is better, stronger and freer than ever."

The FCC has a message for a federal appeals court's concerns about its net neutrality rule dereg: Not to worry.

The FCC has released the draft of its order responding to a federal court remand seeking a clearer picture of the impact of the FCC's internet access deregulation on "(1) public safety; (2) the regulation of pole attachments; and (3) universal service support for low-income consumers through the Lifeline program."

Related: GOF FCC KO's Title II

The court had upheld that deregulatory order while remanding back on those discrete issues and saying “the Commission may well be able to address on remand the issues it failed to adequately consider." The FCC says it has done just that. FCC chairman Ajit Pai has said he is confident the response will satisfy the court.

That court is the U.S. Court of Appeals for the D.C. Circuit.

Related: FCC to Address Net Neutrality Dereg Remand

The court had said the FCC had not sufficiently explained what the effect would be on those issues would be of its Restoring Internet Freedom's (RIF) elimination of the rules against blocking, throttling and paid prioritization, as well as the general conduct standard catch-all reg the previous FCC said was to address conduct that did not fit in any of the other three but might adversely affect internet access. 

The FCC's response was essentially that 1) it followed naturally from the RIF order that public safety would be promoted (it added the caveat that "even if there were some adverse impacts on public safety applications in particular cases—which we do not anticipate—the overwhelming benefits of Title I classification would still outweigh any potential harms"); 2) that the benefits of light-touch regulation under an information service definition of broadband access--rather than the telecommunications service definition of the previous FCC--outweighs any potential negative effects of losing the pole attachments rights under that telecom service definition; and 3) that it has legal authority to continue to provide Lifeline subsidies under the reclassification.

In all three cases, the FCC argues in the remand order that there is no basis to alter its conclusions in the RIF order. Those were that it needed to reverse the previous, Democratic-led, FCC's "misguided and short-lived utility-style regulation of the Internet and return to the light-touch regulatory framework for broadband Internet access service that facilitated rapid and unprecedented growth for almost two decades.

Federal Communications Chairman chairman Ajit Pai said Monday (Oct. 5) that the commission plans to vote at its October meeting on its response to a federal appeals court remand on its Restoring Internet Freedom (RIF) ISP deregulation order.

Pai said the item addressed the court's issues and “affirms that the FCC stands by the Restoring Internet Freedom Order, consistent with the practical reality consumers have experienced since December 2017 of an internet economy that is better, stronger and freer than ever.”

Related: Court Upholds Most of FCC ISP Dereg

The U.S. Court of Appeals for the D.C. Circuit upheld the bulk of the agency's decision to reclassify ISPs as Title I information service providers that aren’t subject to Title II common-carrier regulations and to eliminate the rules against blocking, throttling, paid prioritization, and a general conduct rule. The court also said the FCC was within its authority and the decision was not arbitrary and capricious, but it said the FCC had not sufficiently explained the impact of that deregulation — eliminating rules against blocking, throttling and paid prioritization — on public safety, the regulation of pole attachments and its Lifeline broadband/phone subsidy program. 

Related: NCTA Says RIF Order Is on Firm Ground

The fact that the Republican-led FCC would defend the Republican majority-backed order is no surprise, but Democratic commissioner Jessica Rosenworcel, who voted against the RIF order, was not pleased. 

“This is crazy,” Rosenworcel said in response to the chairman. “The internet should be open and available for all. That’s what net neutrality is about. It’s why people from across this country rose up to voice their frustration and anger with the [FCC] when it decided to ignore their wishes and roll back net neutrality. Now the courts have asked us for a do-over. But instead of taking this opportunity to right what this agency got wrong, we are going to double down on our mistake.”

In a blog post on the Oct. 27 meeting agenda, Pai attributed pushback on that RIF order to "far-left special-interest groups, Hollywood stars, and Silicon Valley tech giants, as well as many in the media," whom he said "tried to scare the American people about what would happen once the FCC adopted the Restoring Internet Freedom Order."

Sen. Ed Markey (D-Mass.), one of Congress' strongest proponents of strong net neutrality rules joined Rosenworcel in blasting the FCC for "undermining" net neutrality. 

“The FCC was wrong when it repealed the net neutrality rules, and it’s wrong again today,” he said. “By failing to course-correct what the D.C. Circuit Court accurately described as an action ‘unhinged from the realities of modern broadband service,’ the Commission is continuing to take us down a path towards a less free and open internet. The FCC should restore the Open Internet Order and the Commission’s clear authority over broadband in order to protect not only the free flow of ideas, but also to make clear that the FCC has the power to ensure public safety and promote broadband access. 

“At a time when the coronavirus pandemic has made us more dependent than ever on broadband and wildfires are devastating the West, we need the FCC to step up, not double down on its past failures to promote the public interest."

Computer companies are telling a California District Court that it should deny an effort by the Trump Administration to block California's tough new net neutrality law from going into effect.

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization.

In an amicus brief filed this week, the Open Technology Institute told the court that telecom companies have "a long history of violating net neutrality and haven't performed well during the COVID-19 pandemic."

The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

The government is seeking a preliminary injunction to block California from being able to enforce the law. OTI said that injunction should be rejected.

ACA Connects and other ISP organizations have filed similar motions to put the California law on hold.

The California law was passed in 2018, but its implementation was stayed pending the ultimate legal determination on the FCC's RIF order--federal appeals court upheld the majority of the decision exactly one year ago (Oct. 1, 2019).--as well as various motions in the California district court.

California Attorney General Xavier Becerra has filed the state's opposition to the Trump Administration's request for a preliminary injunction to block California's net neutrality law from going into effect.

Enforcement is "on hold," as Becerra's office points out, until the U.S. Court of Appeals for the Eastern District of California rules on the various motions.

Related: California's Net Neutrality Challenged

The FCC's deregulation of internet access included a preemption of state regs that conflicted with that decision. But California passed its own tough net neutrality rules to fill what it saw as a regulatory void.

The government is seeking a preliminary injunction to block California from being able to enforce the law. In 2018, California agreed not to enforce its own state net neutrality law until a final court decision on the FCC repeal.

ACA Connects and other ISP organizations filed similar motions to put the California law on hold.

The California filing this week argues that the FCC had no authority to either preempt state net neutrality laws or to impose a federal access deregulatory policy binding on the states.

There is a high bar for an injunction, and AG Becerra said the FCC has failed to meet that bar, including that allowing the law to go into effect would cause irreparable harm.

By contrast, the state told the court, barring enforcement of its net neutrality law would be particularly harmful given how important a free and open internet is during the pandemic and wildfires, where alerts and public evacuations increasingly depend on the internet.

Meanwhile, Vermont Attorney General T.J. Donovan has agreed to hold off net neutrality litigation in that state pending a decision in the California case.

California’s net neutrality law should be blocked because federal law pre-empts the state statute, the U.S. Justice Department argued in asking a federal judge to overturn a state law reviving many tenets of the FCC’s 2015 Open Internet Order.

The Justice Department said federal statutes pre-empt the net neutrality law passed in California’s capitol.

ACA Connects and other ISP organizations filed similar motions to put a hold on California enforcement of state law SB 822, the California Internet Consumer Protection and Net Neutrality Act, which they said conflicts with the 2018 Restoring Internet Freedom Order, the benchmark rule of the early Ajit Pai FCC.

The government is seeking a preliminary injunction to block California from being able to enforce its law. In 2018, California agreed not to enforce its own state net neutrality law until a final court decision on the FCC repeal.

The Justice Department did not reply to a Multichannel News request about the timing of the Aug. 5 court challenge.

The California attorney general's office said it is reviewing the Justice Department's filing "and look[s] forward to defending California’s state net neutrality protections," according to a Reuters report. Large tech companies and consumer groups have embraced the California law. The court schedule may mean there will be no decision on the Justice Department request until October.

Meanwhile, Vermont Attorney General T.J. Donovan has agreed to hold off net neutrality litigation in that state pending a decision in the California case, according to ACA Connects. The association and other organizations entered a stipulation last week to stay enforcement of the Vermont law pending further discussions between the groups and Vermont officials.

Joe Biden has signaled that if he becomes President, his FCC will restore the net neutrality rules and FCC oversight authority the Republican FCC jettisoned in the Restoring Internet Freedom Order, as well as working to undo state laws blocking municipal broadband and invest even more in those projects.   

The FCC is an independent agency, but Biden would get to choose the chairman and have the majority, so it is likely the pendulum would indeed swing back toward the net neutrality rules pushed by President Barack Obama, Biden's former boss. 

That came among a raft of policy proposals, including on broadband, rolled out this week ahead of the Democratic National Convention and billed as coming from both Biden and the man he defeated for the nomination, Sen. Bernie Sanders (I-Vt.). 

Related: FCC KO's Title II

Under the broadband heading--Biden has already committed to a $20 billion investment in rural broadband--the proposals included that "Democrats will restore the FCC's clear authority to take strong enforcement action against broadband providers who violate net neutrality principles through blocking, throttling, paid prioritization, or other measures that create artificial scarcity and raise consumer prices for this vital service." 

That last part getting at other measures could either be the return of the general conduct standard that allowed the FCC to go beyond the bright-line rules against blocking, throttling and paid prioritization to get at other conduct it concluded would interfere with the virtuous internet cycle. ISPs were particularly unhappy with that vague standard. It could also refer to the usage-based pricing or bandwidth carve-outs for some video services that the FCC did not explicitly prohibit in the Open Internet Freedom order, which established the rules and classified internet access as a telecom service subject to common carrier access mandates (the Republicans reclassified it as an information service not subject to common carrier regs). 

Related: New York to Invest Big in Muni Broadband Buildouts

Biden also signaled he would not only fight state efforts that "block municipalities and rural co-ops from building publicly-owned broadband networks" but invested federal funds in muni broadband and for the Lifeline Universal Service Fund subsidy that goes to low-income residents "so children and families can fully participate in school, work, and life from their homes." 

"As millions of Americans have stayed at home to prevent the spread of the pandemic, it is plain to see that in the 21st century, the Internet is not optional: It is a vital tool for participating in the economy, and all Americans need access to high-speed, affordable broadband service," the campaign said.

The net neutrality rules have been careening from FCC to the courts for years, with all sides recognizing congressional action is needed to establish just what internet regulatory authority the FCC does or doesn't have. But the issue has been too hot for a deeply partisan Congress to handle. 

Joe Biden has signaled that if he becomes President, his FCC will restore the net neutrality rules and FCC oversight authority the Republican FCC jettisoned in the Restoring Internet Freedom Order, as well as working to undo state laws blocking municipal broadband and invest even more in those projects.   

The FCC is an independent agency, but Biden would get to choose the chairman and have the majority, so it is likely the pendulum would indeed swing back toward the net neutrality rules pushed by President Barack Obama, Biden's former boss. 

That came among a raft of policy proposals, including on broadband, rolled out this week ahead of the Democratic National Convention and billed as coming from both Biden and the man he defeated for the nomination, Sen. Bernie Sanders (I-Vt.). 

Related: FCC KO's Title II

Under the broadband heading--Biden has already committed to a $20 billion investment in rural broadband--the proposals included that "Democrats will restore the FCC's clear authority to take strong enforcement action against broadband providers who violate net neutrality principles through blocking, throttling, paid prioritization, or other measures that create artificial scarcity and raise consumer prices for this vital service." 

That last part getting at other measures could either be the return of the general conduct standard that allowed the FCC to go beyond the bright-line rules against blocking, throttling and paid prioritization to get at other conduct it concluded would interfere with the virtuous internet cycle. ISPs were particularly unhappy with that vague standard. It could also refer to the usage-based pricing or bandwidth carve-outs for some video services that the FCC did not explicitly prohibit in the Open Internet Freedom order, which established the rules and classified internet access as a telecom service subject to common carrier access mandates (the Republicans reclassified it as an information service not subject to common carrier regs). 

Related: New York to Invest Big in Muni Broadband Buildouts

Biden also signaled he would not only fight state efforts that "block municipalities and rural co-ops from building publicly-owned broadband networks" but invested federal funds in muni broadband and for the Lifeline Universal Service Fund subsidy that goes to low-income residents "so children and families can fully participate in school, work, and life from their homes." 

"As millions of Americans have stayed at home to prevent the spread of the pandemic, it is plain to see that in the 21st century, the Internet is not optional: It is a vital tool for participating in the economy, and all Americans need access to high-speed, affordable broadband service," the campaign said.

The net neutrality rules have been careening from FCC to the courts for years, with all sides recognizing congressional action is needed to establish just what internet regulatory authority the FCC does or doesn't have. But the issue has been too hot for a deeply partisan Congress to handle. 

Mozilla and others that had challenged the FCC's deregulation of internet access in the 2017 Restoring Internet Freedom order have decided not to take that challenge to the Supreme Court, which moves the issue to the states that implemented their own net neutrality regs in response to the FCC's deregulation. 

Related: Net Neutrality Focus Shifts to States, Hill

The deadline was Monday (July 6) and Mozilla signaled there would be no challenge in the high court. 

"After careful consideration, Mozilla—as well as its partners in this litigation—are not seeking Supreme Court review of the D.C. Circuit decision," the company blogged. "Even though we did not achieve all that we hoped for in the lower court, the court recognized the flaws of the FCC’s action and sent parts of it back to the agency for reconsideration. And the court cleared a path for net neutrality to move forward at the state level. We believe the fight is best pursued there, as well as on other fronts including Congress or a future FCC. 

Back in October 2019, a three-judge panel of thethe U.S. Court of Appeals for the D.C. Circuit unanimously upheld the FCC's reclassification of internet access as a Title I information service and eliminating the rules against blocking, throttling and paid prioritization, though it required the FCC to better explain the impact of that decision on emergency communications, infrastructure buildouts and broadband subsidies.  

Mozilla et al. sought full court review of the decision but that was denied, so the Supreme Court was the last stop in the appeal process. Among others petitioning the court for re-hearing were the National Hispanic Media Coalition (NHMC) and the Benton Institute for Broadband and Society. 

Several states had implemented their own net neutrality rules in response to the FCC's elimination of its own, but challenges in California and Veromont were held in abeyance until the federal challenge was exhausted, as it has now been.  

"The fight for net neutrality will continue on," said Mozilla. "The D.C. Circuit decision positions the net neutrality movement to continue on many fronts, starting with a defense of California’s strong new law to protect consumers online—a law that was on hold pending resolution of this case. Other states have followed suit and we expect more to take up the mantle. We will look to a future Congress or future FCC to take up the issue in the coming months and years." 

California actually went beyond the 2015 Open Internet rules the current FCC deregulated, though its law has yet to go into effect after the DOJ sued and the sides took a breather to wait for this appeal decision, released on Oct. 1.

"We are still evaluating our options regarding the state laws that will become effective in 30 days," said NCTA-the Internet & Television Association."

Some state governors have also issued net neutrality-related executive orders.

While the FCC, under current chairman Ajit Pai, had pre-empted any state efforts to reregulate in the 2017 Restoring Internet Freedom order, the D.C. Circuit said the commission had exceeded its authority, and could only pre-empt state efforts on a case-by-case basis under the “conflict pre-emption” provision that covers regulations that conflict with federal laws.

The FCC still has to justify to the D.C. Circuit its assertion that its deregulatory moves would not adversely affect public safety, pole-attachment regulations and Lifeline broadband subsidies. 

Of course, if a Democrat wins the White House in 2020, a new chairman could try and justify yet another 180-degree turn on Title II.

CTIA declined comment on the court decision, but pointed to this statement it made about the law back in February: "Maine’s approach of regulating the collection and use of data by internet service providers only, and not the practices of other companies, including the largest internet companies, data brokers, and others that collect, use, and monetize even more data than ISPs, leaves a gaping hole in the law, is unconstitutional, preempted by federal law, and should be struck down by the courts.”