FCC to reintroduce rules protecting net neutrality

By Brian Fung, CNN

(CNN) — The US government aims to restore sweeping regulations for high-speed internet providers such as AT&T, Comcast and Verizon, reviving “net neutrality” rules for the broadband industry — and an ongoing debate about the internet’s future.

The proposed rules from the Federal Communications Commission will designate internet service — both the wired kind found in homes and businesses as well as mobile data on cellphones — as “essential telecommunications” akin to traditional telephone services, said FCC Chairwoman Jessica Rosenworcel. The rules would ban internet service providers (ISPs) from blocking or slowing down access to websites and online content.

In addition to the prohibitions on blocking and throttling internet traffic, the draft rules also seek to prevent ISPs from selectively speeding up service to favored websites or to those that agree to pay extra fees, Rosenworcel said, a move designed to prevent the emergence of “fast lanes” on the web that could give some websites a paid advantage over others.

With Tuesday’s proposal, the FCC aims to restore Obama-era regulations that the FCC under Republican leadership rolled back during the Trump administration.

But the proposal is likely to trigger strong pushback from internet providers who have spent years fighting earlier versions of the rules in court.

Rosenworcel’s logic for the rules

Beyond their immediate impact to internet providers, the draft rules directly help US telecom regulators address a range of consumer issues in the longer run by allowing the FCC to bring its most powerful legal tools to bear, Rosenworcel said. Some of the priorities the FCC could address after the implementation of net neutrality rules include spam robotexts, internet outages, digital privacy and high-speed internet access, said Rosenworcel in a speech at the National Press Club Tuesday to announce the proposal.

Rosenworcel said reclassifying internet service providers as essential telecommunications entities — by regulating them under Title II of the FCC’s congressional charter — would provide the FCC with clearer authority to adopt future rules governing everything from public safety to national security.

Rosenworcel argued, “without reclassification, the FCC has limited authority to incorporate updated cybersecurity standards into our network policies.”

She added that traditional telephone companies currently cannot sell customer data, but those restrictions do not apply to ISPs, which are regulated differently. “Does that really make sense? Do we want our broadband providers selling off where we go and what we do online?”

Regulating internet providers using the most powerful tools at the FCC’s disposal would let the agency crack down harder on spam robotexts, Rosenworcel said, as spammers are “constantly evolving their techniques.”

And the proposed rules could promote the Biden administration’s agenda to blanket the country in fast, affordable broadband, she argued, by granting internet providers the rights to put their equipment on telephone poles.

“As a nation we are committed, post-pandemic, to building broadband for all,” she said. “So keep in mind that when you construct these facilities, utility poles are really important.”

The FCC plans to vote Oct. 19 on whether to advance the draft rules by soliciting public feedback on them — a step that would precede the creation of any final rules.

A net neutrality redux

Net neutrality rules are more necessary than ever, Rosenworcel said in her speech, after millions of Americans discovered the vital importance of reliable internet access during the Covid-19 pandemic. Rosenworcel also made the case that a single, national standard on net neutrality could give businesses the certainty they need to speed up efforts to blanket the nation in fast, affordable broadband.

But Rosenworcel’s push is already inviting a widespread revolt from internet providers that make up some of the most powerful and well-resourced groups in Washington.

The proposal could also lead to more of what has helped make net neutrality a household term over the past decade: Late-night segments by comedians including John Oliver and Stephen Colbert; in-person demonstrations, including at the FCC’s headquarters and at the home of its chair; allegations of fake, AstroTurfed public comments and claims of cyberattacks; and even threats of violence.

The latest net neutrality rulemaking reflects one of the most visible efforts of Rosenworcel’s chairwomanship — and one of her first undertakings since the US Senate this month confirmed Anna Gomez as the agency’s fifth commissioner, breaking a years-long 2-2 partisan deadlock at the FCC that had prevented hot-button initiatives from moving forward.

The draft rules also show how a continued lack of federal legislation to establish a nationwide net neutrality standard has led to continued flip-flopping rules for ISPs with every change of political administration, along with a patchwork of state laws seeking to fill the gap.

If approved next month, the FCC draft would be opened for public comment until approximately mid-December, followed by an opportunity for public replies lasting into January. A final set of rules could be voted on in the months following.

For years, consumer advocacy groups have called for strong rules that could prevent ISPs from distorting the free flow of information on the internet using arbitrary or commercially motivated traffic rules.

In contrast, ISPs have long argued that websites using up big portions of a network’s capacity, such as search engines or video streaming sites, should pay for the network demand their users generate. European Union officials are said to be considering just such a proposal.

A third rail of broadband policy

In attempting to revive the agency rules, the FCC is once again touching what has become the third rail of US broadband policy: Title II of the Communications Act of 1934, the law that gave the FCC its congressional mandate to regulate legacy telephone services.

Tuesday’s proposal moves to regulate ISPs under Title II, which would give the FCC clearer authority to impose rules against blocking, throttling and paid prioritization of websites. The draft rules are substantially similar to the rules the FCC passed in 2015, the people said. The rules were upheld in 2016 by a federal appeals court in Washington in the face of an industry lawsuit.

Soon after that ruling, however, Donald Trump won the White House, leading him to name Ajit Pai, then one of the FCC’s Republican commissioners, as its chair. Among Pai’s first acts as agency chief was to propose a rollback of the earlier net neutrality rules. The FCC voted in 2017 to reverse the rules, with Pai arguing that the repeal would accelerate private investment in broadband networks and free the industry from heavy-handed regulation. The repeal took effect in 2018.

In the time since, ISPs have refrained from doing the kind of blocking and preferential treatment that net neutrality advocates have warned could occur, but Rosenworcel’s proposal highlights how concerns about that possibility have persisted.

The Biden administration on Tuesday praised the FCC’s plan to reintroduce net neutrality rules for broadband providers.

“President Biden supports net neutrality so that large corporations can’t pick and choose what content you can access online or charge you more for certain content,” said Hannah Garden-Monheit, special assistant to the president for economic policy. “Today’s announcement is a major step forward for American consumers and small businesses and demonstrates the importance of the president’s push to restore competition in our economy.”

Renewing battle lines

Net neutrality began as a bipartisan issue, with the George W. Bush administration issuing some of the earliest principles for an open internet that led to FCC attempts at concrete regulation in 2010 and again in 2015.

The telecom and cable industries have long opposed the use of Title II to regulate broadband, arguing that it would be a form of government overreach, that telephone-style regulations are not suited for digital technologies, and that it would discourage private investment in broadband networks, hindering Americans’ ability to get online.

“Treating broadband as a Title II utility is a dangerous and costly solution in search of a problem,” said USTelecom, a prominent industry trade group, in a statement Tuesday. “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.”

The reference to net neutrality as a “major question” offers clues about possible future litigation involving the proposal, as the Supreme Court has increasingly invoked the “major questions” doctrine to scrutinize federal agency initiatives.

In her speech Tuesday, Rosenworcel acknowledged the coming pushback — as well as past incidents involving supporters of strong net neutrality rules.

“I have every expectation that this process will get messy at times,” Rosenworcel said. “In the past, when this subject came up, we saw death threats against [former Republican FCC Chairman Ajit Pai] and his family. That is completely unacceptable, and I am grateful to law enforcement for bringing the individual behind these threats to justice. We had a fake bomb threat called in to disrupt a vote at the agency. We had protesters blocking [former Democratic FCC Chairman Tom Wheeler] in his driveway and keeping him from his car. We saw a dark effort to tear down a pro-net neutrality nominee for the agency.”

Part of what made the FCC’s 2015 rules particularly controversial, however, was that classifying ISPs as Title II providers meant the agency could theoretically attempt to set prices for internet service directly, a prospect that ISPs widely feared but that the FCC in 2015 promised not to do.

Tuesday’s proposal makes the same commitment, the people said, forbearing from 26 provisions of Title II and more than 700 other agency rules that could be seen as intrusive. The draft rules also prohibit the FCC from forcing ISPs to share their network infrastructure with other, competing internet providers, the people said, a concept known as network unbundling.

On top of fierce industry pushback in the FCC’s comments process, the proposal could also lead to legal challenges against the FCC. While the 2015 net neutrality rules survived on appeal, suggesting the current FCC may be on firm ground to issue the current proposed rules, the draft comes as the Supreme Court has moved to reconsider the power of federal agencies by scrutinizing courts’ decades-long deference to their expert authority.

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