The FCC has 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.
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It is now up to the U.S. Court of Appeals for the D.C. Circuit to decide if it accepts that explanation.
That FCC vote came at the FCC's Tuesday (Oct. 27) public meeting. The commission was responding to a remand from the appeals court. The court had upheld most of the RIF order, but 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."
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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.
It also concluded that the FCC was still able to require Lifeline support from broadband internet access services, and clarifies that authority in the remand order response.
FCC chair Ajit Pai began his statement on the order by pointing to the bomb threats that interrupted the FCC's vote on the RIF order, as well as the death threats he and his children received and the harassing of his relatives. He said that happened because opponents of the order had launched a campaign of fibs, fables and fabrications. Despite that, he said, the FCC majority had adopted the order and the result was investment in deployment that helped networks handle the pandemic, an "ultimate stress test" that broadband networks passed with flying colors.
The chairman said the case against the order had been "a sham" and the order, with the passage of time, has proved correct.
Pai also said the U.S. did not have have to go "hat in hand" to Netflix or YouTube to ask them to downgrade their resolution to SD, as did countries in Europe with its utility-style regulation.
The chairman took the opportunity to take a shot at Twitter's blocking of links to a New York Post story about Hunter Biden. He said the paper, which had been founded by Alexander Hamilton, had been blocked by "a tech company that opposed net neutrality dereg," adding: "So much for a principled stand on net neutrality," he said.
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Commissioner Michael O'Rielly said the order sufficiently reinforces the commission's "sound approach."
Commissioner Brendan Carr said that broadband networks' ability to handle the increased COVID-19 load was the best defense of the FCC's elimination of utility-style regs. "America’s communications networks were in far better shape to handle the surge in COVID-19 traffic than they were under the Commission’s Title II regime," he said. "More communities were connected to robust and resilient services; more Americans had a choice for their broadband needs. This should put the debate over utility-style regulation of the Internet in the rear-view mirror once and for all."
O'Rielly agreed it should, but suggested that was unlikely.
Commissioner Jessica Rosenworcel, who dissented from the decision, was one Democrat who was clearly not putting the issue in the rearview mirror.
“I believe the Federal Communications Commission got it wrong when three years ago it gave the green light to our nation’s broadband providers to block websites, throttle services, and censor online content," she said. "I believe this decision put the agency on the wrong side of the public, the wrong side of history, and the wrong side of the law....Today we had the opportunity for a do-over. A court sent the mess this agency made with net neutrality back to the FCC. It told us that our decision was wrong for public safety, wrong for broadband infrastructure, and wrong for low-income households. It told us try again. But this order on remand makes apparent this agency is not interested in getting it right. Instead, it doubles down, rather than recognizing the realities of the world around us.”
In his dissent, commissioner Geoffrey Starks said the ability of networks to handle the COVID-19 load had nothing to do with the RIF order. "I value and deeply appreciate the work American communications providers have done to respond to COVID-19 and am proud of how our networks appear to have performed under historically high loads of traffic. But any successes aren’t due to the RIF Order. They just aren’t. Increases in download speeds or capital investments instead reflect long-term trends that pre-dated the RIF Order and, if anything, were higher under the Open Internet Order’s regulatory regime."
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