FCC plans to restore net neutrality rules tossed out under Trump

Discriminatory handling of data and paid internet fast lanes could again be disallowed

Federal Communications Commission chairwoman Jessica Rosenworcel said on Tuesday that she intends to seek a vote to restore US net neutrality rules that were nixed by the Trump administration.

Net neutrality in this context refers to the open internet policy adopted under the Obama administration back in 2015. The rules classified internet broadband as "telecommunication services" under Title II of the 1934 Communications Act, meaning that broadband providers were regulated like common carriers or utilities. They were thus obligated to provide service in a non-discriminatory manner.

Just days after the debut of the Trump administration in January 2017, Ajit Pai was nominated to lead the FCC and subsequently set about reclassifying broadband providers as "information services" under Title I of the Communications Act. That relieved broadband firms of certain reporting obligations and freed them to adopt business practices like prioritizing different types of internet traffic – for a fee, of course.

After a fraud-riddled public comment period, the FCC in December 2017 voted along party lines – the three Republican commissioners at the time supported the proposal, and the two Democratic members opposed it – to end net neutrality. The repeal was seen as a major victory for the cable and telecom industry – at least until some states took matters into their own hands.

In 2018, Washington, Oregon, and California all passed state net neutrality laws. Colorado, Maine, New Jersey, and Vermont have since done so. A few other states have supported net neutrality via executive order. Telecom industry lobbying groups that had spent years battling California's law finally gave up in May last year.

Shortly after president Biden took office in January 2021, Democratic lawmakers began pushing for the restoration of net neutrality on a national level. Nothing much happened at the FCC because the agency was deadlocked – with two Democrats, two Republicans, and not much common ground. Biden's nomination of Gigi Sohn on October 26, 2021 met with huge hostility from Republican and some Democratic lawmakers, who refused to confirm the appointment. That led Sohn to withdraw from consideration in March 2023.

Earlier this month, the US Senate confirmed Anna Gomez, nominated in May, as the FCC's fifth commissioner. That has given the Democrats a 3-2 majority and a path to move broadband companies back under Title II as common carriers.

Time for a change

In remarks delivered at the National Press Club in Washington DC, Rosenworcel called the repeal of net neutrality a mistake.

"I believe [the Trump administration's] repeal of net neutrality put the agency on the wrong side of history, the wrong side of the law, and the wrong side of the public," she said.

"It was not good then, but it makes even less sense now. It determined that this infrastructure – which the pandemic proved so essential for modern life – needs no oversight. I think that's wrong."

To restore that oversight, Rosenworcel said she asked her colleagues to conduct rulemaking to restore net neutrality.

Thus it begins again. Rosenworcel's proposal will be voted upon by her fellow commissioners and presented to the public for comment.

"The repeal of net neutrality rules was problematic not only because it wiped away enforceable, bright-line rules to prevent blocking, throttling, and paid prioritization," she explained. "It was problematic because when the agency reversed the decision to oversee broadband internet access as a 'telecommunications service' under Title II of the Communications Act it had a lot of downstream consequences – and we should talk about them."

Rosenworcel explained that exempting broadband from FCC authority created a set of additional problems beyond permitting data discrimination.

For example, the FCC cannot address competition concerns in markets where customers don't have other service provider options. Nor can it deal with scenarios like fire fighting being hampered by data rate throttling – as occurred in California five years ago. And the FCC cannot withdraw operating licenses to broadband companies deemed national security threats if they're deemed beyond its regulatory reach.

What's more, she explained, FCC rules that prohibit telecom companies from selling customers' location data only apply to those using services covered by Title II.

"On Thursday, I will release the full text of this rulemaking," announced Rosenworcel. "It seeks comment on putting back in place policies to prevent your broadband provider from engaging in blocking, throttling, and paid prioritization along with a general conduct rule that prohibits your broadband provider from unreasonably interfering or unreasonably disadvantaging consumers from going where they want and doing what they want online."

US Senator Ted Cruz (R-TX) issued a statement condemning the proposal. "Instead of allowing broadband investment to flourish, the Biden FCC wants to move backwards and reinstate failed Obama-era net neutrality rules that treat the internet as a public utility controlled by the federal government," he complained. He also cast doubt on whether the courts will support Title II classification for broadband based on current law.

Last year, Senate Democrats Ed Markey (D-MA) and Ron Wyden (D-OR) attempted to address that concern by introducing a bill called the Net Neutrality and Broadband Justice Act, which would place broadband internet under Title II and ensure that the FCC has the appropriate regulatory authority. So far, the proposed legislation has not emerged from committee.

Corynne McSherry, legal director for the Electronic Frontier Foundation, welcomed the revistation of net neutrality.

"We are pleased that the FCC is moving toward reinstating net neutrality rules. It's good for internet users across America, and sets a good example for the world," wrote McSherry, in an email to The Register.

"The COVID pandemic of the past four years has only reinforced the need for internet service providers to treat all data that travels over their networks fairly, without improper discrimination in favor of particular apps, sites or services. We want the internet to live up to its promises of fostering innovation, creativity, and freedom. We don't want ISPs acting as gatekeepers, making special deals with a few companies and inhibiting new competition, innovation, and expression."

The Center for Democracy & Technology voiced similar sentiment.

The advocacy group declared: "Reinstating net neutrality is important to ensure consumers have nondiscriminatory access to all lawful content and services on the internet and are protected against the risk of harmful and anticompetitive actions by broadband internet service providers." ®

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