FCC chair Jessica Rosenworcel is wasting no time trying to leverage her new Democratic majority by teeing up a big-ticket item — net neutrality.
Rosenworcel plans to announce an effort to reinstate network neutrality rules at a speech at the National Press Club on Tuesday (September 26). The Federal Communications Commission was promoting the speech Monday to the press and planned to stream it on YouTube and its website to make sure remote audiences could tune in.
The planned speech comes just a day after Anna Gomez was sworn in as the fifth FCC commissioner and the third Democrat on the panel, giving Rosenworcel the Democratic majority she has been waiting for for most of three years.
According to FCC officials, the chairwoman will propose at the FCC's Oct. 19 public meeting a draft rulemaking reestablishing the FCC's authority under Title II and creating strong uniform net neutrality standards.
The item is being tied , in part, to closing what they say is a loophole that hampers the ability of the FCC to prevent foreign actors from attacking U.S. broadband networks and data because the FCC lacks broadband regulatory authority.
The rules will mirror the former net neutrality rules, including forbearing from rate regulation and unbundling.
Rosenworcel’s announcement came only days after two former top Obama administration legal veterans said the FCC should not try to restore the rules because they would just be struck down by the Supreme Court.
The FCC, under Trump-era Republican chair Ajit Pai, voted to eliminate the net neutrality rules that prevented blocking, throttling or paid prioritization of internet access by internet service providers. It also included an internet conduct standard by which the FCC could review conduct not prohibited by those rules — like zero-rating plans — but that might adversely affect internet openness and access to content. Rosenworcel said Tuesday that that 2017 repeal of the rules was on the wrong side of history, the law and the American public.
The U.S. Court of Appeals for the D.C. Circuit generally upheld the elimination of the rules and the FCC's reclassification of internet access as a Title I information service not subject to the common-carrier regulations of a Title II telecommunications service.
Then-commissioner Rosenworcel had opposed the rules’ elimination and had signaled after she became chair that she wanted to reinstate them.
But without a Democratic majority since she took over — due to Congress’s inability to confirm a nominee until just recently — Rosenworcel has been unable to muster the political majority to tackle non-bipartisan items.
Gomez has signaled she supports “robust” Title II-based net neutrality rules. Fellow Democratic commissioner Geoffrey Starks is also on the record supporting the rules, so Rosenworcel would appear to have the votes she needs.
In advance of the speech, and citing the speculation about its contents, Republican commissioner Brendan Carr associated himself with the views of those former Obama-era legal veterans.
“As a former general counsel of the FCC myself, I would encourage my commission colleagues to heed the judicious guidance offered by these top lawyers from the Obama Administration and focus the FCC’s work on the numerous, important subjects that Congress has authorized the Commission to address — from rural broadband and public safety to spectrum and national security — rather than pursuing the Biden administration’s unnecessary and unlawful plan for exerting government control over the Internet,” Carr said in a statement.
FCC officials said they were confident the item would pass legal muster if challenged in the courts, which it almost certainly will be.
“The proposed rules may complicate, if not deeply upset, our collective efforts to bring internet to rural and unserved communities," said Michael Powell, president of NCTA-the Internet & Television Association and former FCC chairman. "These rules set out very heavy regulations that complicate the calculus of deploying networks in expensive, risky, and hard-to-serve markets. The FCC’s actions only add to that burden, and we fear net neutrality will lead to net fatality.
"For two decades, there has been only one two-year period in which the FCC applied Title II to the internet, yet the internet has been open throughout because it makes business sense to offer it that way," he said.
In contrast to Carr and Powell, news of the planned rule restoration was music to the ears for Senate Commerce Committee chair Maria Cantwell (D-Wash.), a big network neutrality proponent.
Commerce Committee ranking member Sen. Ted Cruz (R-Tex.), saw it rather differently.
"FCC Democrats are laughably plowing ahead even though their histrionic predictions of doom and gloom after the repeal of Obama-era rules in 2017 turned out to be completely bogus," Cruz said. "Rather than give legitimate reasons for another policy reversal, it’s clear FCC Democrats simply want control. They desperately want to micromanage providers’ pricing and terms of service, and collect billions in new USF taxes at the expense of investment, economic growth, and consumer choice."
Cruz was among the majority of Republicans in the Senate who voted against putting Gomez in as the third Democrat, including based on concerns she would provide the needed third vote for Title II-based rules.
“With the swearing in of Anna Gomez, the FCC finally has the power to take action on the priorities important to the American people, from delivering on net neutrality and expanding affordable broadband access to strengthening local news,” Cantwell said.
USTelecom saw doom and gloom in the announcement.
"Powering up an outdated regulatory time machine to impose rules designed for a long-forgotten era runs directly counter to, and will likely derail, the critical achievement we are so close to reaching – universal connectivity," said CEO Jonathan Spalter. "Treating broadband as a Title II utility is a dangerous and costly solution in search of a problem. Congress must step in on this major question and end this game of regulatory ping-pong. The future of the open, vibrant internet we now enjoy hangs in the balance.”
“It is foolhardy for the FCC to embark on yet another attempt to impose public utility-like regulations on Internet service providers," said Free State Foundation President Randolph May. "As a matter of policy, it’s wrong to go down this road again when there's no evidence of a problem justifying new burdensome regulations."
Edge providers and competitive carriers represented by the Computer & Communications Industry Association were celebrating the news.
“Ensuring the nondiscriminatory provisioning of broadband internet access service has already been deemed to be within the FCC’s statutory authority. Reinstating those protections will ensure that America’s digital economy is inclusive, open, and stable," said CCIA SVP and chief of staff Stephanie Joyce.
WISPA – Broadband Without Boundaries, which represents fixed wireless providers, said that while Title II would grant broadband providers access to poles, conduits and rights-of-way not currently guaranteed, the cost of regulation outweighs the benefit.
"ACA Connects and its hundreds of members are troubled by the announcement that the FCC is considering subjecting smaller broadband service providers to onerous regulations that were crafted for the copper-line telephone business," said association president Grant Spellmeyer. "Such utility-style regulations will inhibit our Members’ investment to the detriment of their subscribers. These regulations will also give Big Tech platforms even greater ability to leverage smaller broadband providers and their subscribers."
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.