The Federal Communications Commission voted 3–2 to impose net neutrality rules today, restoring the common-carrier regulatory framework enforced during the Obama era and then abandoned while Trump was president.
The rules prohibit Internet service providers from blocking and throttling lawful content and ban paid prioritization. Cable and telecom companies plan to fight the rules in court, but they lost a similar battle during the Obama era when judges upheld the FCC's ability to regulate ISPs as common carriers under Title II of the Communications Act.
"Consumers have made clear to us they do not want their broadband provider cutting sweetheart deals, with fast lanes for some services and slow lanes for others," FCC Chairwoman Jessica Rosenworcel said at today's meeting. "They do not want their providers engaging in blocking, throttling, and paid prioritization. And if they have problems, they expect the nation's expert authority on communications to be able to respond. Because we put national net neutrality rules back on the books, we fix that today."
ISPs insist the rules aren't necessary because they already follow net neutrality principles yet also claim the rules are so burdensome that they will be prevented from investing more in their networks. Lobby group USTelecom today said the "relentless regulation" comes at the cost of "failing to achieve Internet for all."
"This is a nonissue for broadband consumers, who have enjoyed an open Internet for decades," USTelecom CEO Jonathan Spalter said. "Rather than pushing this harmful regulatory land grab, policymakers should keep their eyes on the real-world prize of building opportunity for everyone in a hyperconnected world." Advertisement
NCTA: Net neutrality is “net fatality”
Cable lobby group NCTA-The Internet & Television Association claimed that "the FCC's marketplace intrusion comes at the worst possible time for our massive national effort to finally close the digital divide—just as billions in federal funding are dedicated to extending internet access to America's unserved communities."
That is a reference to a $42 billion program that is paying ISPs to deploy networks in unserved and underserved areas. "Instead of clearing obstacles to speed broadband deployment where it is most needed, this ill-timed and unlawful order threatens to hinder progress," NCTA CEO Michael Powell said. "This will not deliver net neutrality; it will risk a net fatality."
The court battle against the FCC will center on whether the commission can define broadband as a telecommunications service, a necessary step for imposing Title II common-carrier regulations. ISPs hope that the Supreme Court's evolving approach to "major questions" will prevent the FCC from defining broadband as telecommunications without explicit instructions from Congress.
FCC Commissioner Geoffrey Starks, a Democrat, said that "major questions review is reserved for only 'extraordinary cases'—and this one doesn't come close. There's no 'unheralded power' that we're purporting to discover in the annals of an old, dusty statute—we've been classifying communications services one way or the other for decades, and the 1996 [Telecommunications] Act expressly codified our ability to continue that practice."
FCC Republican hopes for Supreme Court reversal
FCC Republicans blasted the Democratic majority today. "The Internet in America has thrived in the absence of 1930s, command-and-control regulations by the government," Commissioner Brendan Carr said.
Carr, who spoke for more than half an hour, described how the FCC's net neutrality decisions were allegedly swayed by President Obama in 2015 and by President Biden this year. "The FCC has never been able to come up with a credible reason or policy rationale for Title II. It is all just shifting sands, and that is because the agency is doing what it's been told to do by the executive branch," Carr said.
Carr also blamed judges for giving the FCC too much power. He expressed hope that the current Supreme Court will ensure that only Congress can decide whether Title II is applied to broadband.
"Congress never passed a law saying the Internet should be heavily regulated like a utility, nor did it pass one giving the FCC the authority to make that determination. The executive branch pressured the agency into claiming a power that remained, and remains, with the legislative branch," Carr said. Advertisement
Strict enforcement urged
In the weeks before the vote, some consumer advocates criticized what they see as a loophole in the rules that would let ISPs give faster speeds to certain types of applications as long as application providers don't have to pay for special treatment. They say the FCC should explicitly prohibit ISPs from speeding up applications instead of only enforcing a no-throttling rule that forbids slowing applications down. Others say the rules are just as strong as those enforced during the Obama era.
Aside from that disagreement, consumer advocates overwhelmingly praised the FCC action. John Bergmayer, legal director at advocacy group Public Knowledge, urged the FCC to enforce the rules strictly:
Broadband providers will continue attempting to re-brand their old plans for internet fast and slow lanes, hoping to sneak them through. The FCC will need to diligently enforce its rules, including clarifying that discrimination in favor of certain apps or categories of traffic "impairs" and "degrades" traffic that is left in the slow lane, and that broadband providers cannot simply take apps that people use on the Internet every day and package them as a separate "non-broadband" service. The FCC must also ensure that practices that are not expressly prohibited but still unreasonably interfere with the ability of end users to freely use the Internet, or of edge providers to freely compete, are disallowed. These practices include discriminatory zero-rating and network interconnection practices.
The FCC today said that reinstating Title II will also give it authority "to revoke the authorizations of foreign-owned entities who pose a threat to national security to operate broadband networks in the US." The FCC said it could previously target phone providers with such actions but not broadband providers.
"The Commission has previously exercised this authority under section 214 of the Communications Act to revoke the operating authorities of four Chinese state-owned carriers to provide voice services in the US," the FCC said. "Any provider without section 214 authorization for voice services must now also cease any fixed or mobile broadband service operations in the United States."
Reinstating Title II also gives the FCC more authority to monitor Internet service outages, the agency said.
