FCC to reinstate net neutrality in the US until someone decides to scrap it again

Pendulum returns to the Obama era – don't be surprised if it swings right back

The Federal Communications Commission has confirmed proposals to vote on rules to restore net neutrality in the United States later this month – whether it'll stick this time is anyone's guess, though.

The FCC announced that it would hold a vote to restore net neutrality at its April 25 open meeting yesterday after declaring plans to reinstate the directive last September. The objective, as stated [PDF] last year, is largely to undo Trump-era elimination of net neutrality and return to the 2015 rules passed under President Barack Obama.

For those unfamiliar with the seesaw that is American net neutrality regulation, the concept rests on reclassifying internet service providers and broadband network operators as common carriers under Title II of the Telecommunications Act of 1996. Common carriers have to generally treat all traffic equally, and Title II classification gives the FCC the ability to enforce legislation to ensure ISPs don't give preference to certain kinds of traffic.

The Obama-era net neutrality edict reclassified ISPs as common carriers, then the Trump administration's FCC undid the rule and reclassified carriers under Title I of the Telecom Act, stripping the FCC of its ability to regulate ISPs and prevent abuse of their control of the internet.

"After the prior administration abdicated authority over broadband services, the FCC has been handcuffed from acting to fully secure broadband networks, protect consumer data, and ensure the internet remains fast, open, and fair," FCC chairwoman Jessica Rosenworcel said of the latest plan. "A return to the FCC's overwhelmingly popular and court-approved standard of net neutrality will allow the agency to serve once again as a strong consumer advocate of an open internet."

In a press conference today with a group of senior FCC officials, the agency said that much has changed since the 2015 bill was passed. Officials noted that the coronavirus pandemic reaffirmed the essential nature of broadband access, new security threats emerged that require stronger oversight (from the FCC, naturally), and there's no federal agency able to monitor broadband outages, which the FCC said is an essential modern public safety consideration.

Then there's the matter of national security concerns - raised since the Trump administration undid net neutrality - over Chinese-manufactured hardware found in US telecommunications networks.

According to officials on the call, the FCC's ability to ban Chinese equipment only applies to telecom networks under Section 214 of the Communications Act because telecom networks are classified as common carriers but ISPs aren't. That means there's still a bunch of foreign-manufactured hardware on broadband networks that the FCC can't make carriers replace. Restoring net neutrality, the officials said, would give the FCC authority to demand those changes.

The officials said the restoration of net neutrality would ban ISPs from selling the personal data of their customers too, which they are currently free to do, as Title I Section 222 of the Telecommunications Act also doesn't apply to them. 

How long will this round last?

As we've noted before, net neutrality is a contentious, partisan issue in the US, with Republicans largely opposing it, and Democrats mostly in favor of it. This means it's possible that, if presumptive Republican presidential nominee Donald Trump bests Democratic incumbent Joe Biden in November, the restored rules will be back on the chopping block. 

Republican senators have already voiced their opposition to the FCC's latest plan – so what's to say this isn't just an exercise in regulatory confusion and scrutiny? We put that question to the FCC leaders on Wednesday's call, and their responses weren't exactly encouraging. 

When we asked if this round of net neutrality regulation has longevity, FCC senior leaders told us that they can't predict the future, but said they believe they're on firm legal ground that they hope means the rules will remain in place if and when the opposition party comes to power. 

A future FCC will have to justify the rollback of net neutrality, especially to consumers, the FCC said, with an official on the call saying the public overwhelmingly supports net neutrality. Officials argued that it won't make sense to roll back consumer protections that prevent the sale of personal information, or allow foreign hardware on broadband networks, and that Rosenworcel has done the best she can to ensure the regulation will stick.

That, of course, assumes any future administration will care. The broadband industry bombarded the FCC with fake comments to drum up support for repealing net neutrality in 2017, and despite plenty of comments in support of the Obama-era rule, Trump's FCC – headed by former Verizon in-house lawyer Ajit Pai – went ahead with plans to scrap it anyway.

As we've noted before, Pai's arguments in favor of scrapping net neutrality were frequently misleading and highly partisan. Assuming things will be different this time around is, perhaps, wishful thinking.

Several US states have taken it upon themselves to pass their own net neutrality controls since the 2017 repeal. Getting a federal law on the books that would be harder to repeal than an agency rule hasn't progressed much, however. The most recent effort, the 2022 Net Neutrality and Broadband Justice Act, never made it past committee hearings in the House or Senate. With that in mind, net neutrality advocates will just have to pin their hopes on the FCC's wishful thinking. ®

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