The decade-long battle over net neutrality in America has returned. Again.
On Tuesday, several Democratic lawmakers as well as consumer advocates and city representatives held a congressional briefing on “restoring FCC authority to enforce Open Internet protections and expand affordable broadband."
It’s worth noting that the term “net neutrality” didn’t appear in the title. That's because it has become a partisan attack word, thanks to a long and difficult history of trying to place internet access within a legal framework. But that’s what we’re talking about. Safeguards to ensure a fair playing field by preventing broadband providers from blocking, slowing down, or speeding up certain content based on a customer's ability to pay.
The panelists, unsurprisingly, were all in favor of the Federal Communications Commission (FCC) overseeing internet access; a responsibility that was discarded under the Trump Administration and FCC chairman Ajit Pai.
But to some degree their arguments for internet access protections come with added weight given the extraordinary impact of the COVID-19 coronavirus over the past year. We're more and more reliant on access to the 'net, and so safeguards on the provision of connectivity is ever so more vital. “Some changes from the pandemic are going to stay with us,” predicted Representative Mike Doyle (D-PA) who chairs a critical House subcommittee on communications and technology. “Teleworking, home working, buying food and medicine online…”
During the pandemic, he points out, we have all also seen or experienced instances of slow or spotty internet connections, as well as data caps and/or unusual ISP fees. We “need a cop on the beat,” he argues.
Under rules passed back in 2015 under a Democratic administration, there was such a cop: the FCC. But thanks to a long and complicated history of trying to create safeguards around internet provision without specific legislation, those rules were achieved by designating internet provision as a “Title II” service, similarly to telephone lines. That gave the FCC the authority to effectively regulate the market.
But that approach was disliked by Republicans who preferred a more free-market approach. As such when things shifted to a Republican administration, the rules were scrapped. In the course of doing that, however, the FCC effectively gave up any authority it had over internet provision: a situation that many argue is untenable given how important the internet is to our modern lives.
Without a government agency overseeing broadband provision, there is also a dangerous dearth of information over what exactly is going on with the internet across America, something that Harold Feld, a senior vice president for advocacy group Public Knowledge, highlighted.
“There is a giant FCC-shaped hole,” he noted, pointing out that we have no good idea how many people are online, where they are, what speeds their connections are, nor how much they’re paying for that connection. “All this information is critical to addressing problems that are currently outside FCC jurisdiction.”
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A member of Baltimore City Council, Zeke Cohen, stressed that given the fact that people need internet access these days to study and work, we needed to stop treating the internet like it is a private service and recognize more as a public utility. He didn’t like the “cop on the beat” analogy though; he argued instead for framing the issue in terms of providing some accountability for internet service providers (ISPs).
Cohen gave the example of how when Baltimore dug into the issue of data caps placed on its citizens, it was given explanations that quickly fell apart under scrutiny, and was unable to piece together enough information to make a case for arguing against them. “There is a frustrating lack of transparency,” he said, noting that the only way of understanding what internet provision Baltimore residents had – speed and cost – was to “go block-by-block and ask them.”
The problem remains however that “Title II authority” is heavy-handed and reliant on a Telecommunications Act written in 1934, long before the modern era of communications. Feld acknowledged the fudge: “People did try not to go to Title II but it was too complicated and too hard,” he noted, a reference to the FCC’s previous rules that were thrown out by the courts.
If today's FCC does return to the 2015 rules, there is nothing to stop the next FCC head under a Republican administration from scrapping them and reverting back to the 2017-era rules. It could create an endless loop of uncertainty for America’s internet.
Senator Ed Markey (D-MA) has a solution. He will introduce legislation “in the coming weeks” that, thanks to the Democrats narrowly controlling both halves of Congress could, theoretically, pass. That would put the Title II approach on a legal footing that could only be reversed with legislation.
But we’ve also been here before. Markey pushed the Save the Internet Act in the Senate in 2019, and it was never given a vote in that chamber; a corresponding proposal passed in the House of Representatives. Even if it was passed by Congress, President Trump made it plain he wouldn’t sign it. It is possible that Democrats could force through new legislation that removes the current rules and solidifies internet access as a Title II service though that approach is certain to hit heavy opposition from Republicans.
There may be wiggle room, though, according to Feld: “If enough states pass their own laws reclassifying broadband as Title II, then ISPs will have incentive to come to the table,” he told The Register. “It is also possible that, as pressure grows on Republicans to deliver broadband to their rural constituents, that we will peel off enough Republicans to get legislation through.”
We’re not holding out much hope, however. What’s more likely is that Congress will engage in yet one more round of blood-letting and backbiting and make the issue of net neutrality even more toxic than it already is.
Markey also pointed to the probable reality, at least for the next four years. “We have a whole new era of net neutrality which is just beginning,” he said. “Net neutrality champions now hold the reins here on Capitol Hill. Once we have three Democrats in place at the FCC, I'm going to strongly urge the commission to reverse the Trump FCC's wrongheaded decision and restore net neutrality and the FCC's authority over broadband.”
In other words, one more round of ping-pong. Feld explained the current legal position and complexity around net neutrality when it comes to FCC authority (hold on to your hats). “As you may recall, the Mozilla court case remanded the 2017 Open Internet order to the FCC because it found the FCC had failed to consider the impact of reclassification on important elements of the Communications Act - such as public safety and universal service.
“In October, the FCC voted 3-2 to issue an order on remand addressing the issues remanded by the court. This second order has been appealed to the DC Circuit, and the FCC has before it Petitions on Reconsideration. The current chair can ask the DC Circuit to hold the matter in abeyance pending resolution of the recon petitions.
“Once Congress confirms a third Democrat, the commission can vote 3-2 to reverse the October 2020 order and instead issue a new order saying: 'Hey court, you were right. The 2017 order is incompatible with our other responsibilities under the Communications Act. So in response to the remand we now vacate the 2017 order and go back to the 2015 order.”
Yes, it’s a mess. But like it or not, the net neutrality debate is coming back around again. And there still aren’t any good solutions. ®