The year “2024 is going to include a lot of litigation and a lot of it generated by the cable TV industry,” said Ted Hearn, editor of Policyband.

Ted Hearn of Policyband

Speaking on Broadband Breakfast Live Online Wednesday, Hearn said that industry would likely be challenge the agency’s rules on net neutrality, digital discrimination, early termination fees, and “all-in” pricing.

Others of the journalists agreed that the FCC’s net neutrality order is unlikely to survive court scrutiny. Howard Buskirk, executive senior editor of Communications Daily, pointed out that  the Supreme Court’s “major questions doctrine” as a barrier for the FCC to overcome.

In 2022, the Supreme Court held in West Virginia v. EPA that Congress alone has the power to decide on “major questions” of “vast economic or political significance.” Hearn and Buskirk said that it was almost certain that net neutrality would fit into that category, and that as such a “major question,” its resolution was the responsibility of Congress alone.

Noting the lack of radio frequency spectrum availability in 2023, Buskirk also highlighted the role of spectrum sharing over the past year. This included the FCC’s focus on finalizing rules for specific spectrum bands, such as the 4.9 GigaHertz, as well as the broader implications for 5G and 6G wireless technology development.

BEAD Implementation

Other topics covered included details in the implementation of the $42 billion Broadband Equity, Access and Deployment program, and concern over the likely depletion of the Affordable Connectivity Program fund.

While BEAD is likely to help advance rural connectivity, its focus on rural areas leaves major urban connectivity gaps unaddressed, noted Sean Gonsalves, senior reporter and editor at the Institute for Local Self-Reliance’s Community Broadband Networks Initiative. He predicted the lion’s share of BEAD funds will be awarded to incumbent internet service providers.

Gonsalves also highlighted that the FCC’s new rules around digital discrimination may amount to little given that the agency allows for discrepancies as “justified by genuine issues of technical or economic feasibility.”

As the event wound down, Broadband Breakfast Editor and Publisher Drew Clark, the session moderator, asked each panelist to name one surprise issue to watch for in 2024.

Hearn highlighted marketplace challenges for the cable industry, including from fixed wireless access.

Buskirk said the year will be dominated by actions at the FCC, including those by recently-confirmed agency Commissioner Anna Gomez.

Gonsalves warned of increasingly aggressive anti-community broadband campaigns by cable lobbyists.

Telecommunications Reports Senior FCC Reporter Lynn Stanton closed the session by predicting “some big sleeper issue we’ve all completely forgotten about that will somehow rise from the dead now that the FCC has this 3 to 2 majority.”

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, January 3, 2024 – The Broadband Forecast for 2024 with Tech Journalists

Kick off 2024 with us at our first livestream event of the year with broadband journalists predicting the biggest shifts in infrastructure and connectivity in 2024 as we consider The Twelve Days of Broadband! Tune in to get a glimpse into the future of connectivity and where the year might take us!

Panelists

• Howard Buskirk, Executive Senior Editor, Communications Daily
• Sean Gonsalves, Senior Reporter, Editor and Communications Team Lead, Institute for Local Self Reliance’s Community Broadband Networks Initiative
• Ted Hearn, Publisher, Policyband
• Lynn Stanton,  Senior Editor, Wolters Kluwer’s TR Daily.
• Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTube, Twitter and Facebook.

See a complete list of upcoming and past Broadband Breakfast Live Online events.

In the latest twist in the saga, the FCC proposed in October 2023 to reclassify broadband internet as a telecommunications service under Title II of the Communications Act.

• On the Eleventh Day of Broadband, my true love sent to me:
  More Than 11 Years in Lawsuits Over Net Neutrality
  Nearly 10 Months Without FCC Spectrum Auction Authority
  93 Percent Match of Federal Funds for Enabling Middle Mile Broadband Program
  The Number 8 As a Representation of Balance, Justice and Fairness
  7 Layers to the Open Systems Interconnection Model and Open Access Networks
  One-hundred-and 66 Billion Dollars of American Semiconductor Investment
  56 States and Territorial Broadband Offices Implementing BEAD
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence

If ultimately approved, the move would give the FCC broader authority over broadband providers. Crucially, the commission would be able to require that internet traffic is not sped up or slowed down artificially, meaning businesses could not pay providers for preferential treatment.

The issue is a contentious one at the FCC, and the commission can only take it up now that Democrats have a 3-2 majority, after several years of a 2-2 agency. Along with the strong digital discrimination rules adopted in November, it’s part of a Democratic effort to expand regulatory oversight of broadband as it becomes more essential for daily life.

Republicans in Congress and at the FCC oppose this, arguing it makes providers less likely to invest in new infrastructure. 

Controversy over Title II Reclassification

Title II brings a host of other regulatory powers, but the commission is proposing to abstain from wielding more than two dozen of the most onerous provisions on broadband providers if the service is recategorized. Those include explicit rate regulation and immediate Universal Service Fund contribution.

Net neutrality has been a longstanding goal of the Biden administration and Democratic FCC Chairwoman Jessica Rosenworcel, who referenced it in a letter to lawmakers after being confirmed as chairwoman in December 2021. 

“You’re dealing with the most central infrastructure in the digital age. Come on, it’s time for a national policy,” Rosenworcel said before voting in favor of the proposal at the commission’s October open meeting. It would pass 3-2 along party lines, putting the rules up for public comment.

That set the commission up for an earful: more than 40,000 comments on the proposed net neutrality rules have since been filed with the agency. Reply comments on the proposal are due January 17, 2024.

The broadband industry is largely opposed to the move. AT&T and T-Mobile, in addition to trade groups and conservative think tanks, filed comments arguing that the practices net neutrality rules are designed to combat are not widespread. They say using Title II authority to enforce net neutrality principles would stifle investment in broadband, both by opening providers up to sanctions for previously legal conduct and by introducing the potential for future commissions to pick up the 27 Title II provisions the FCC is choosing to forego.

“No ISP takes that assurance seriously,” AT&T said of the commission’s proposal not to regulate broadband prices as part of the rulemaking.

Advocacy groups like Public Knowledge argued the anticompetitive practices net neutrality rules aim to prevent are only uncommon because states like California enacted their own net neutrality laws.They said the move would protect consumers who depend on reliable and consistent internet access.

Broadband “is not a luxury but a necessity for education, communication, and participation in the economy,” the group said. “The FCC’s proposed action will restore its ability to oversee this essential service.”

This was expected to some degree. The Trump-era FCC received comments from many of the same players in 2017 when it repealed net neutrality rules – substantially similar to the 2023 proposal – set up by the 2015 commission under Obama. 

A prolonged nomination to break a deadlock

The commission was unable to move on the issue until this year because Democrats lacked a majority. President Joe Biden first nominated net neutrality advocate Gigi Sohn, a former FCC staffer and co-founder of Public Knowledge, to the FCC’s vacant fifth seat in 2021, but her nomination turned into a prolonged political fight. 

Republican senators hung on her position on the board of a nonprofit streaming service that was shut down after large telecoms sued for copyright infringement. They alleged Sohn would be unable to remain impartial on matters related to broadcasting and copyright – even after she moved to recuse herself from related issues.

Votes repeatedly stalled along party lines before Sohn withdrew her name from consideration in March of this year, citing campaigns against her nomination by telecom lobbyists.

“The unrelenting, dishonest and cruel attacks on my character and my career as an advocate for the public interest have taken an enormous toll on me and my family,” she said in a statement announcing her withdrawal.

Commissioner Anna Gomez had a comparably smooth nomination process. Biden announced her nomination in May after Sohn stepped back and the Senate voted to approve her four months later, finally giving Democrats a 3-2 majority on the FCC. Rosenworcel wasted no time taking advantage of the new math, announcing her intention to reinstate net neutrality rules one day after Gomez was sworn in as a commissioner in September.

Potential legal roadblocks

Following the October vote to move forward with the proposal, Republican Commissioner Brendan Carr pointed out a potential legal hurdle to reclassifying broadband as a Title II service this time around. The Supreme Court’s conservative supermajority has been less deferential to agencies’ interpretation of the law, and might consider the reclassification too significant a move for an agency to make without explicit approval from Congress.

Experts disagree on how likely a Supreme Court intervention is, as the FCC’s previous reclassifications of services under the Communications Act – both the 2015 net neutrality rules and a classification of DSL under Title II in 1998 – have passed legal muster.

At a House oversight hearing in November, Republican Commissioner Nathan Simington asked Congress to “put an end to the continued whipsawing of industry over the Title II fight” by passing new legislation governing the internet ecosystem. A Democratic bill that would codify broadband as a Title II service stalled after being introduced in both the House and Senate last summer.

See “The Twelve Days of Broadband” on Broadband Breakfast

• On the First Day of Broadband, my true love sent to me:
  One Artificial General Intelligence
• On the Second Day of Broadband, my true love sent to me:
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
• On the Third Day of Broadband, my true love sent to me:
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
• On the Fourth Day of Broadband, my true love sent to me:
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
• On the Fifth Day of Broadband, my true love sent to me:
  56 States and Territorial Broadband Offices Implementing BEAD
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
• On the Sixth Day of Broadband, my true love sent to me:
  One-hundred-and 66 Billion Dollars of American Semiconductor Investment
  56 States and Territorial Broadband Offices Implementing BEAD
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
• On the Seventh Day of Broadband, my true love sent to me:
  7 Layers to the Open Systems Interconnection Model and Open Access Networks
  One-hundred-and 66 Billion Dollars of American Semiconductor Investment
  56 States and Territorial Broadband Offices Implementing BEAD
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
  
• On the Eighth Day of Broadband, my true love sent to me:
  The Number 8 As a Representation of Balance, Justice and Fairness
  7 Layers to the Open Systems Interconnection Model and Open Access Networks
  One-hundred-and 66 Billion Dollars of American Semiconductor Investment
  56 States and Territorial Broadband Offices Implementing BEAD
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
• On the Ninth Day of Broadband, my true love sent to me:
  93 Percent Match of Federal Funds for Enabling Middle Mile Broadband Program
  The Number 8 As a Representation of Balance, Justice and Fairness
  7 Layers to the Open Systems Interconnection Model and Open Access Networks
  One-hundred-and 66 Billion Dollars of American Semiconductor Investment
  56 States and Territorial Broadband Offices Implementing BEAD
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
• On the Tenth Day of Broadband, my true love sent to me:
  Nearly 10 Months Without FCC Spectrum Auction Authority
  93 Percent Match of Federal Funds for Enabling Middle Mile Broadband Program
  The Number 8 As a Representation of Balance, Justice and Fairness
  7 Layers to the Open Systems Interconnection Model and Open Access Networks
  One-hundred-and 66 Billion Dollars of American Semiconductor Investment
  56 States and Territorial Broadband Offices Implementing BEAD
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence
• On the Eleventh Day of Broadband, my true love sent to me:
  More Than 11 Years in Lawsuits Over Net Neutrality
  Nearly 10 Months Without FCC Spectrum Auction Authority
  93 Percent Match of Federal Funds for Enabling Middle Mile Broadband Program
  The Number 8 As a Representation of Balance, Justice and Fairness
  7 Layers to the Open Systems Interconnection Model and Open Access Networks
  One-hundred-and 66 Billion Dollars of American Semiconductor Investment
  56 States and Territorial Broadband Offices Implementing BEAD
  4.8 Million Challenges to Broadband Coverage Data
  $3.6 Billion Funds Remaining in the Affordable Connectivity Program
  24 Reverse-Preemption Pole Attachment States (2023 edition)
  And One Artificial General Intelligence

The FCC’s net neutrality rulemaking proposes to reclassify broadband internet as a telecommunications service and to reinstate the 2015 Open Internet Order put in place by Obama administration FCC chief Tom Wheeler. The rules ensure that broadband providers do not block, throttle, or engage in paid prioritization of internet traffic.

Trump administration FCC chief  Ajit Pai and the then-GOP majority repealed these rules in 2017. Chairwoman Jessica Rosenworcel is now working to reverse that decision, continuing the partisan division on the issue.

As in in 2015, the new  proposal plans to forebear from  imposing many Title II requirements – rules pertaining to common carriers – on broadband service providers. For example, the  FCC said that it would not use Title II to set the prices that broadband service providers can charge in the future.

Additionally, the FCC has put forward new arguments that reclassifying broadband service providers under Title II would help the FCC achieve goals beyond net neutrality, including national security, public safety, and individual  privacy.

Democrats have not had majority control at the five-member FCC until early October. That marked the first time since President Biden assumed office that Rosenworcel has had a majority available to her.

Stark divisions in attitude

Most of the public interest advocates supported reclassification and many highlighted what they said was the increased  importance of broadband as a public utility. Since the COVID-19 pandemic, there has been increased digital reliance for education, work, healthcare, and commerce.

Conversely, most industry stakeholder rebuffed any need to reinstate any net neutrality rules beyond the transparency requirement, the one aspect of the agency’s original rules that remain on the books.

More than 10 public interest groups representing low-income Americans voiced support for Title II, as well as, the Universal Service Fund, emphasizing the increased importance of enforcing Section 254 under Title II which reads “quality services should be available at just, reasonable, and affordable rates” as the broadband affordability landscape has changed since 2015.

The Electronic Frontier Foundation called the Trump administration gutting of the original rules “a profound mistake”, and urged a return to the 2015 Open Internet Order.  EFF said that  discriminatory practices by broadband service providers have already occurred since the reversal of 2015 net neutrality rules.

Public Knowledge criticized what it referred to as the previous FCC’s disregard for consumer protection, competition, and oversight.

But industry groups including ACA Connects argued that Title II reclassification would impose burdens to smaller broadband providers, including stifling innovation and increasing deployment costs.

Similarly, the Wireless Internet Service Providers Association filed comments saying that there has been an increase in competition in the broadband marketplace, eliminating any need for net neutrality regulation of smaller providers.

Both AT&T and T-Mobile emphasized the need to protect broadband access without stifling innovation, calling for a balanced approach.

More than 46,500 comments have been filed in total to the FCC since it opened the open internet docket. Reply comments are be due January 17, 2024.

The move would reclassify broadband internet as a telecommunications service under Title II of the Communications Act of 1934, opening the industry up to more expansive oversight from the FCC, akin to its authority over voice providers.

“You’re dealing with the most central infrastructure in the digital age. Come on, it’s time for a national policy,” said FCC Chairwoman Jessica Rosenworcel in remarks supporting the proposal.

Similar rules were put in place under the Obama administration’s FCC, but Trump-appointee Ajit Pai repealed them after just two years in 2017. 

Reclassifying broadband would bring restrictions on adjusting internet traffic speeds and other heightened fairness standards. The commission’s proposal chooses not to enforce 26 of the most onerous Title II provisions, like explicit rate regulation and network unbundling.

The proposal will be up for public comment until mid-January 2024, after which the commission will deliberate and either issue a new proposal for comment or put a rule into effect.

Commissioner Brendan Carr expressed doubt about the move’s legal viability. The FCC’s 2015 implementation of net neutrality rules passed legal muster, as did a similar 1998 reclassification of DSL services to Title II status.

But there has since been a “sea change in administrative law,” said Carr. The Supreme Court has in recent years been less deferential to federal agencies’ interpretations of the law, bucking the practice of giving expert regulators broader authority to carry out their congressional mandates. 

Absent an explicit move from Congress, the Title II reclassification “will not survive a Supreme Court encounter,” Carr said.

Commissioners voted along party lines, with the two Republicans dissenting and the three Democrats approving the measure. Despite net neutrality being a priority for President Joe Biden and Chairwoman Rosenworcel, the commission was unable to move on the issue until September, when the confirmation of Commissioner Anna Gomez created a Democratic majority.

The proposal will also not put broadband providers in the Universal Service Fund contribution base with other telecommunications service providers. There have been calls by lawmakers to update the program’s funding model, but the FCC has left it to Congress to make those changes.

Comments on the proposal will be due December 14. Reply comments will be due January 17, 2024.

FCC Chairwoman Jessica Rosenworcel announced on September 26 plans to classify broadband internet service as a “common carrier” service under Title II of the Communications Act of 1934, reinstituting an Obama-era policy that was repealed in 2017 by Trump-appointed FCC chair Ajit Pai. That would give the commission more authority to regulate internet providers, including the ability to prevent carriers from throttling or speeding up internet traffic to certain websites.

That extra authority, the FCC said in a statement, would allow the commission to address public safety issues that arise from more relaxed federal internet regulations. Specifically, the commission would be able to oversee broadband services for first responders and bolster its authority to require internet providers to report and fix outages, as well as deny internet access to companies controlled by hostile governments.

Industry groups have reacted sharply to the proposal. Broadband providers say the regulations are unnecessary and burdensome, while software companies join human rights organizations in supporting increased oversight.

Rosenworcel has been supportive of net neutrality measures since she joined the FCC in 2021. “I believe the 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 when announcing plans to reinstate the rules.

The move came just one day after Anna Gomez was confirmed as a commissioner, giving Democrats a 3-2 majority at the FCC. The commission had been in a 2-2 gridlock while Joe Biden’s first nominee, Gigi Sohn, spent months awaiting confirmation before withdrawing from consideration in March 2023, citing harassment by lobbyists.

The commission will vote on the proposal at its October 19 open meeting. If approved, it will go up for public comment.

The FCC announced on Tuesday that it is looking to reinstate its 2015 net neutrality regulations, which involve categorizing broadband internet as a Title II service under the Communications Act of 1934. That would give the commission more muscle to regulate the industry, on par with its authority over telephone companies.

In particular, the commission is looking to prevent carriers from throttling or increasing users’ speed depending on the site they want to access.

The move survived legal scrutiny in 2016, when the D.C. Court of Appeals held the agency had the authority to classify technologies under the act as it saw fit. The Supreme Court would ultimately refuse to hear the case and let the D.C. ruling stand.

Berin Szoka, president of policy think tank TechFreedom, said Wednesday the legal landscape has changed since then, with a conservative majority on the Supreme Court that is more willing to tell federal agencies they are overstepping their boundaries.

“In the last six years, the ground has shifted very significantly,” he said.

He pointed to a dissent from then-D.C. Circuit judge Brett Kavanaugh when the court refused to rehear the net neutrality case. Kavanaugh, now part of a conservative majority on the Supreme Court, argued the FCC’s move to reclassify broadband was too drastic for it to do without explicit authorization from Congress.

“That was a dissent in 2017. That’s now the Court’s majority position,” he said, referring to the so-called major questions doctrine. Under the doctrine, the Supreme Court has ruled in recent years that federal agencies cannot enact policies that address major economic or political questions without explicit congressional authorization, giving agencies less authority to regulate as they see fit.

Stephanie Joyce, chief of staff and senior vice president of the Computer & Communications Industry Association, a tech trade group, said the doctrine might not apply to the FCC’s action at all.

She compared net neutrality rules to the EPA’s attempt to transition power plants to clean energy sources, which the Supreme Court nixed under the doctrine.

The EPA had not taken such a step before, she said, making it a bigger change in regulation than the FCC’s reclassification of broadband. That and other technology reclassifications have precedent at the commission, she said, including both the 2015 rules and a 1998 reclassification of DSL technology.

“I’m not sure the major questions doctrine is going to carry the day here,” she said.

Chip Pickering, CEO of another tech trade group, INCOMPAS, agreed that “there’s a lot of uncertainty” about how the Supreme Court would treat a challenge net neutrality rules from the FCC. But he said that a gridlocked Congress has little chance of enacting wider regulation on internet providers.

“Title II has, so far, been the only authority that’s been upheld on net neutrality,” he said. “And we have to act now.”

FCC commissioners will vote on whether to put up the proposed rules for public comment on October 19, barring a government shutdown.

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

BREAKING NEWS SESSION! Wednesday, September 27 – What Happens Next on Net Neutrality?

Federal Communications Commission Chairwoman Jessica Rosenworcel wasted no time in promulgating rules regarding network neutrality. With Anna Gomez’ confirmation as the elusive fifth commissioner, Democrats finally have a majority at the agency. The chairwoman has said that she will put forward proposed rules on the topic at the agency’s open meeting on October 19. The partisan-tinged topic is expected to largely be a return of the 2015 rules under the agency’s authority under Title II of the Communications Act. One day after Rosenworcel’s Tuesday speech on net neutrality – and one day before the item is publicly released – Broadband Breakfast will convene industry and civil society stakeholders in a discussion about What Happens Next?

Panelists

• Chip Pickering, CEO, INCOMPAS
• Stephanie Joyce, Chief of Staff and Senior Vice President Computer & Communications Industry Association
• Joe Kane, Director, Broadband and Spectrum Policy, Information Technology and Innovation Foundation
• David Zumwalt, CEO, WISPA: Broadband Without Boundaries
• Berin Szoka, President, TechFreedom
• Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources:

• FCC Looking to Reinstate Net Neutrality Rules, Broadband Breakfast, September 26, 2023
• On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate, Broadband Breakfast, May 11, 2021
• D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC, by Drew Clark, Broadband Breakfast, October 7, 2019

Please note: The originally scheduled Broadband Breakfast Live Online event, on renewing the Affordable Connectivity Program, will now take place on October 11, 2023.

For nearly three decades, Chip Pickering has been at the forefront of every major telecommunications milestone. From his time as a Senate staffer on the Commerce Committee shaping the Telecommunications Act of 1996, to his role as a Member of Congress leading on tech issues and overseeing the transition to the commercial internet, to serving as CEO of the leading internet and competitive networks association advocating for more competition and innovation in our ever-evolving industry. Through his leadership at INCOMPAS, Pickering continues to be a trusted voice and a leading expert on important issues facing the tech and telecommunications industry.

Stephanie Joyce joined CCIA after decades in private practice representing technology companies and competitive carriers before state and federal administrative agencies and courts. She is an experienced advocate for procompetitive policy, including her advocacy for CCIA at the FCC on broadband deployment and Open Internet rules. Stephanie has also provided counsel to telecommunications companies, as well as CCIA, on privacy matters. Stephanie is a graduate of the University of Notre Dame, received her graduate degree from George Washington University Elliott School of International Affairs, and her law degree from George Washington University Law School.

Joe Kane is director of broadband and spectrum policy at ITIF. Previously, he was a technology policy fellow at the R Street Institute, where he covered spectrum policy, broadband deployment and regulation, competition, and consumer protection. Earlier, Joe was a graduate research fellow at the Mercatus Center, where he worked on Internet policy issues, telecom regulation, and the role of the FCC.

David Zumwalt is CEO & CEO of WISPA – Broadband Without Boundaries.WISPA represents the interests of innovative, often small ISPs that provide fixed wireless, fiber and other connectivity solutions to consumers, businesses, first responders and community anchor institutions in the digital divide.  Supported by a robust vendor and supplier ecosystem, these ISPs deliver primary broadband connectivity in traditionally underserved and unserved suburban, rural and tribal communities nationwide, with a growing subscriber base now reaching nine million Americans. Prior to WISPA he served as Chief Operating Officer of Broadband VI, a major Internet Service Provider in the US Virgin Islands.  He also served as the Executive Director of the University of the Virgin Islands Research & Technology Park, an instrumentality of the USVI government formed to establish and grow a vibrant knowledge-based sector in the Territory’s economy.  He also founded and served as Chairman and CEO of Dallas-based CNet, Inc., a leading provider of radio frequency (RF) engineering and operational support system software and services to the worldwide wireless communications industry, securing significant customer relationships in forty countries.

Berin Szoka serves as President of TechFreedom. Previously, he was a Senior Fellow and the Director of the Center for Internet Freedom at The Progress & Freedom Foundation. Before joining PFF, he was an Associate in the Communications Practice Group at Latham & Watkins LLP, where he advised clients on regulations affecting the Internet and telecommunications industries.

Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative

WATCH HERE, or on YouTube, Twitter and Facebook.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTube, Twitter and Facebook.

See a complete list of upcoming and past Broadband Breakfast Live Online events.

The draft proposal would classify broadband as a Title II service under the Telecommunications Act of 1934, giving the commission more regulatory muscle over the industry – particularly ensuring internet providers cannot throttle or speed up traffic to certain sites. The FCC made the same change in 2015, but it was repealed by Trump-appointed chairman Ajit Pai just two years later.

JOIN US FOR A BREAKING NEWS SESSION of Broadband Breakfast Live Online on Wednesday, September 27 – What Happens Next on Net Neutrality?

Telecom and internet companies have argued this would be an excessive burden that stifles innovation and increases deployment costs. Tuesday was no different, with NCTA – The Internet and Television Association, a trade group representing cable and internet providers like Comcast and Charter, issuing a statement in opposition.

The rules would “complicate the calculus of deploying networks in expensive, risky, and hard-to-serve markets,” the statement read.

Internet companies have also argued net neutrality is simply unnecessary, citing a lack of widespread throttling after the rules were repealed in 2017, although studies found it did occur on some services like Youtube and Netflix.

FCC Chairwoman Jessia Rosenworcel, speaking at an Axios event on Wednesday, chalked up the relatively unchanged consumer experience to a patchwork of state laws that sprang up after the commission repealed its rules

“The truth is, we’re living in a world with open internet policies in place,” she said. “But they’re coming from state capitals.”

Software companies also tread familiar ground. In a 2018 brief to the D.C. Appeals Court, the Computer & Communications Industry Association – another trade group representing major software companies like Google and Meta – argued against the FCC’s rollback of net neutrality rules, citing investment booms in cloud-based and streaming services resulting from mandatory equal accessibility.

“Reinstating those protections will ensure that America’s digital economy is inclusive, open, and stable,” the group’s chief of staff Stephanie Joyce said in a statement on Tuesday. 

The draft rules will be up for public comment if approved by a vote of FCC commissioners on October 19.

JOIN US FOR A BREAKING NEWS SESSION of Broadband Breakfast Live Online on Wednesday, September 27 – What Happens Next on Net Neutrality?

Net neutrality rules give the FCC more authority to regulate internet companies by classifying broadband as an essential communications service under Title II of the Communications Act of 1934, including the power to prevent internet providers from adjusting the speed of network traffic to favor certain sites. The agency instated similar rules in 2015 before they were repealed by then-Republican Chairman Ajit Pai in 2017.

JOIN US FOR A BREAKING NEWS SESSION of Broadband Breakfast Live Online on Wednesday, September 27 – What Happens Next on Net Neutrality?

Mirroring the 2015 rules, the proposal – set to be released on Thursday – specifies that when regulating broadband providers under Title II, the commission would pass up 27 of the most onerous provisions in the law and hundreds of agency regulations that typically apply to Title II services like voice calling, Rosenworcel said in the announcement.

Rosenworcel said that internet access is essential to modern life, and needs to be regulated accordingly to ensure fair access.

“No one without it has a fair shot at 21st century success,” she said.

The move comes just one day after Anna Gomez was sworn in as a commissioner, giving Democrats at the FCC a 3-2 majority. The commission has been split since President Joe Biden took office, with his nominee Gigi Sohn withdrawing from consideration in March 2023, citing attacks on her character from lobbyists.

Republican Commissioner Brendan Carr issued a statement before Rosenworcel’s announcement on Tuesday cautioning against moving forward with net neutrality efforts. He cited an analysis by two Barack Obama lawyers, which highlighted the Supreme Court’s application of the “major questions doctrine” in a 2022 case limiting the Environmental Protection Agency’s ability to regulate emissions.

Under the doctrine, the court has held in recent years that federal agencies must have explicit authorization from Congress to impose regulations of major economic and political significance. Since the FCC did not receive congressional instruction to categorize broadband as a Title II service, the move is likely to be struck down, the lawyers wrote.

In an effort to codify expanded FCC authority over internet providers, congressional Democrats introduced in July 2022 a bill to explicitly define broadband as a Title II service. It was referred to committees, and no further actions have been taken on them.

The proposal will be a subject of discussion at the FCC’s open meeting on October 19. After its likely approval by the commission’s Democratic majority, the proposed rules will be up for public comment.

The broadband nutrition label, as mandated by the Infrastructure Investment and Jobs Act of 2021, requires broadband providers to display at the point of sale a label that shows prices, introductory rates, speeds, data allowances, and other critical broadband service information. 

The FCC released proposed rules on July 18 that would add additional requirements to the nutrition labels, to which several providers and associations expressed that the additional rules would place undue burden on small providers and would not improve data, said Steve Coran, chair of Lerman Senter’s broadband at the Spectrum and Communications Infrastructure practice group. 

Data requirements as currently outlined by the FCC are balanced, clear and easy and will promote transparency, said Coran. In response to responses from providers, the FCC increased its estimation that the proposed rulemaking would create between 1 and 9 hours of annual burden on providers to a range of 1.5 to 65 hours, he said. 

However, Ryan Johnston, senior policy counsel at municipality public interest nonprofit Next Century Cities, warned that the label requirements will not provide data as comprehensive as is necessary. As currently written, providers are allowed to report the “typical” speeds that each location receives. These ranges provide no certainty and is “more ethereal than the maximum advertised speed,” said Johnston. 

Additionally, the FCC failed to include the measurements that consumers want to see, include more precise pricing models, promotion lengths, and expected bill after promotions are done, said Johnston. He urged the FCC to require providers to report the average speed. 

Joshua Stager, policy director at Free Press, agreed, saying that the core issue for consumers is to address bill shock, referring to the uncertainty around internet bills and the detrimental effect it has on low-income households. For this reason, he urged the FCC to ensure that consumers will be able to access the label. 

Stager said that the FCC declined to require that the label be put on the monthly bill. He warned that providers can hide the label from consumers which will result in a lack of market response simply because consumers are not aware that the label exists. 

Discriminatory pricing in the industry is blatantly obvious, said Sascha Meinrath, Palmer Chair in telecommunications at Penn State University. “The FCC consistently refuses to collect the kind of information that would exonerate ISPs or condemn them,” he stated.  

Sascha Meinrath

He warned that this lack of appropriate data collection will be to the detriment of consumers. He accused the FCC of refusing to act against discriminatory and predatory pricing, claiming that it is a prime example of “American corruption.” 

Meinrath, who assisted in the initial proposal for the nutrition labels, said that the goal of the labels was to provide customers with information on the minimum services they will expect to see. He claimed that the current nutrition labels are insufficient and do not achieve those goals. 

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

Wednesday, July 26, 2023 – Broadband Nutrition Labels: Have They Improved?

In late 2022, the Federal Communications Commission required internet service providers to display broadband “nutrition” labels including speeds, service reliability, ACP participation and other relevant metrics at every point of sale. While there is consensus on the need for an informative and consumer-friendly label, some believe the requirements go too far or don’t go far enough. With federal broadband funding making its way to each state and the implementation phase just around the corner, the “nutrition labels” will soon become a reality. What might be the FCC’s next steps? How will the requirements affect broadband providers? How can consumers make sure they order from the right broadband “menu”?

Panelists

• Ryan Johnson, Senior Policy Counsel, Next Century Cities
• Steve Coran, Chair, Lerman Senter’s Broadband, Spectrum and Communications Infrastructure practice group
• Joshua Stager, Policy Director, Free Press
• Sascha Meinrath, Palmer Chair in Telecommunications, Penn State University; Founder, X-Lab
• Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Ryan Johnson is responsible for NCC’s federal policy portfolio, building and maintaining relationships with Federal Commissions Commission officials, members of Congress and staff, and public interest allies. Working with various federal agencies, Ryan submits filings on behalf of NCC members on technology and telecommunications related issues that impact the digital divide such as broadband data mapping, benchmark speeds, spectrum policy, content moderation, privacy, and others.

Steve Coran is chair of Lerman Senter’s Broadband, Spectrum and Communications Infrastructure practice group. He represents broadband providers, private equity firms, equipment and technology companies, and new technology firms, serving their policy, transactional, compliance, and licensing needs. He also actively represents a trade association before the FCC, Congress, and other federal agencies in matters involving spectrum policy, Internet regulation, the Universal Service Fund, and other proceedings affecting wireless broadband service providers and other wireless technology interests.

Joshua Stager is the policy director at Free Press, where he advances policies to close the digital divide, protect consumers, and make the broadband market competitive and affordable. As a public interest advocate and attorney, he works closely with industry, Congress, the FCC and other federal agencies. He previously was deputy director of the Open Technology Institute.

Drew Clark is CEO of Breakfast Media LLC. He has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative.

As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

SUBSCRIBE to the Broadband Breakfast YouTube channel. That way, you will be notified when events go live. Watch on YouTube, Twitter and Facebook.

See a complete list of upcoming and past Broadband Breakfast Live Online events.

When asked if the FCC should seek direction from Congress before addressing net neutrality, a rule barring service providers from speeding up or throttling internet traffic or giving preference to certain services, Biden-backed nominee Anna Gomez said she would like to “help, if confirmed, with efforts towards legislation.” However, she emphasized that the FCC should still have “robust” oversight over broadband internet.

Her response marks a subtle departure from the commonly held viewpoint among Democrats, including Gigi Sohn, a former FCC nominee also endorsed by President Biden, who unequivocally advocated for the FCC’s progression in rolling back net neutrality.

Responses from other FCC incumbents Brendan Carr and Geoffrey Starks remain divided along the party line, with Carr supporting more guidance from Congress while Starks said the FCC currently has the authority to proceed with net neutrality.

Since the FCC’s decision to reverse net neutrality in 2017, heated discussions have taken place on whether or not to reinstate the policy. The primary determinant right now is for Congress to place broadband services back under Title II, which would define broadband as “internet service” and give the FCC authority to enforce net neutrality rules.

Many have been advocating for the return of net neutrality, including FCC chairwoman Jessica Rosenworcel. Last year, a group of Democrat senators also introduced the Net Neutrality and Broadband Justice Act to codify net neutrality.

South Korea exports content and produces platforms which compete with leading tech platforms from the US and China. Yet few know and understand the important elements of South Korean broadband policy, particularly its unique interconnection and cost recovery regime.

For example, most Western observers mischaracterize the relationship between broadband providers and content providers as a termination regime. There is no such concept in the South Korean broadband market. Content providers which want to connect to a broadband network pay an “access fee” like any other user.

International policy observers are paying attention to the IP interconnection system of IP powerhouse Korea and the lawsuit between SK Broadband (SKB) and Netflix. There are two important subjects. The first is the history and major regulations relating to internet protocol interconnection in South Korea. Regulating IP interconnection between internet service providers is considered a rare case overseas, and I explain why the Korean government adopted such a policy and how the policy has been developed and what it has accomplished.

The second subject is the issues over network usage fees between ISPs and content providers and the pros and cons. The author discusses issues that came to the surface during the legal proceedings between SKB and Netflix in the form of questions and answers. The following issues were identified during the process.

First, what Korean ISPs demand from global big tech companies is an access fee, not a termination fee. The termination fee does not exist in the broadband market, only in the market between ISPs.

In South Korea, content providers only pay for access, not termination

For example, Netflix’s Open Connect Appliance is a content delivery network. To deliver its content to end users in Korea, Netflix must purchase connectivity from a Korean ISP. The dispute arises because Netflix refuses to pay this connectivity fee. Charging CPs in the sending party network pay method, as discussed in Europe, suggests that the CPs already paid access fees to the originating ISPs and should thus pay the termination fee for their traffic delivery to the terminating ISPs. However in Korea, it is only access fees that CPs (also CDNs) pay ISPs.

In South Korea, IP interconnection between content providers and internet service providers is subject to negotiation

Second, although the IP interconnection between Korean ISPs is included in regulations, transactions between CPs and ISPs are still subject to negotiation. In Korea, a CP (including CDN) is a purchaser which pays a fee to a telecommunications service provider called an ISP and purchases a public internet network connection service, because the CP’s legal status is a “user” under the Telecommunications Business Act. Currently, a CP negotiates with an ISP and signs a contract setting out connection conditions and rates.

Access fees do not violate net neutrality

South Korean courts have rejected attempts to mix net neutrality arguments into payment disputes. The principle of net neutrality applies between the ISP and the consumer, e.g. the practice of blocking, throttling and paid prioritization (fast lane).

In South Korea, ISPs do not prioritize a specific CP’s traffic over other CP’s because they receive fees from the specific CP. To comply with the net neutrality principle, all ISPs in South Korea act on a first-in, first-out basis. That is, the ISP does not perform traffic management for specific CP traffic for various reasons (such as competition, money etc.). The Korean court did not accept the Netflix’s argument about net neutrality because SKB did not engage in traffic management.

There is no violation of net neutrality in the transaction between Netflix and SKB. There is no action by SKB to block or throttle the CP’s traffic (in this case, Netflix). In addition, SKB does not undertake any traffic management action to deliver the traffic of Netflix to the end user faster than other CPs in exchange for an additional fee from Netflix.

Therefore, the access fee that Korean ISPs request from CPs does not create a net neutrality problem.

Why the Korean model is not double billing

Korean law allows for access to broadband networks for all parties provided an access fee is paid. Foreign content providers incorrectly describe this as a double payment. That would mean that an end user is paying for the access of another party. There is no such notion. Each party pays for the requisite connectivity of the individual connection, nothing more. Each user pays for its own purpose, whether it is a human subscriber, a CP, or a CDN. No one user pays for the connectivity of another.

Dae-Keun Cho, PhD is is a member of the Telecom, Media and Technology practice team at Lee & Ko. He is a regulatory policy expert with more than 20 years of experience in telecommunications and ICT regulatory policies who also advises clients on online platform regulation policies, telecommunications competition policies, ICT user protection policies, and personal information protection. He earned a Ph.D. in Public Administration from the Graduate School of Public Administration in Seoul National University. This piece is reprinted with permission.

Request the FREE 58 page English language summary of Dr. Dae-Keun Cho’s book Nothing Is Free: An In-depth report to understand network usage disputes with Google and Netflix. Additionally see Strand Consult’s library of reports and research notes on the South Korea.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

• On the Fifth Day of Broadband, my true love sent to me:
  5 Federal Communications Commissioners
  $42.5 billion in Broadband Equity, Access and Deployment funds
  Section Two-30 of the Communications Decency Act
  24 Reverse-Preemption Pole Attachment States
  and A Symmetrical Gigabit Network.

November’s midterm elections saw the Democrats hold on to power in the Senate, where executive and judicial appointments are confirmed. But Democrats also held to power in the previous term, yet the upper chamber did not hold votes on the prospective fifth commissioner of the Federal Communications Commission, Democrat Gigi Sohn.

Sohn, who was nominated by President Joe Biden in October 2021, has been in a bit of a political purgatory since making it through the Senate commerce committee in March. Former FCC commissioners were concerned about her prospects of making it to Senate votes before the midterms, with the lingering possibility that the Republicans would win the chamber and nuke her nomination over concerns that she would not be able to remain non-partisan on the issues the FCC addresses.

 Download the complete 12 Days of Broadband report

But the predicted red wave sweeping Washington didn’t come to bear this November, and the Democrats have maintained control of the upper chamber – with an opportunity for another Senate representative when Georgia holds its run-off election on Tuesday. Analysts are now speculating that Sohn has a real shot at breaking the party deadlock at the FCC, which consists of two Democrats (Nathan Simington and Brendan Carr) and two Republicans (Chairwoman Jessica Rosenworcel and Geoffrey Starks). That could happen as early the “fist few months of 2023,” New Street Research wrote in a recent note.

Swearing Sohn in would allow the Democrats on the commission to resurrect old but important issues impacting the broadband industry and that has deeply divided the parties, notably reversing the Republican reversal in 2017 of net neutrality rules instituted during Barack Obama era. That would mean classifying broadband under Title II of the 1934 Communications Act, which would give the commission greater regulatory muscle to make providers respect the principle of common carriage, in which traffic on their networks cannot be tampered with, sped up or given preference.

But Democrat senators aren’t waiting for the commission. This summer, Senators Doris Matsui, Ca., Edward Markey, Mass., and Ron Wyden, Ore., introduced the Net Neutrality and Broadband Justice Act, which would codify net neutrality into law so that it wouldn’t bend to the changing personnel of the regulatory body. Simington has said he welcomes congressional, not FCC, action on the item.

Nor are some states. California had its net neutrality law upheld after industry trade groups challenged it at the U.S. Court of Appeals.

As Rosenworcel has firmly committed to bringing back those rules, the lag on Sohn’s nomination has given the Republicans a possible legal mechanism to challenge that authority. That’s because the Supreme Court ruled this summer that only Congress has the power to decide “major questions” of “vast economic or political significance,” though some are skeptical as to the impact on the FCC.

Despite that, Rep. Cathy McMorris Rodgers, R-Wash., wrote to Rosenworcel asking for pending and expected rulemakings of the commission, with a warning that – as the ranking member of the House Energy and Commerce Committee – the committee will “ensure the FCC under Democrat leadership does not continue to exceed Congressional authorizations.”

To prevent possible FCC overreach, McMorris Rodgers, the ranking member of the House Energy and Commerce Committee, asked FCC Chairwoman Jessica Rosenworcel to provide a list of pending and expected rulemakings, and the congressional authorizations therefor. Rosenworcel responded earlier this month in a letter released with the congresswoman’s original correspondence.

The Washington Republican wrote that the Biden administration has been overly reliant on executive orders and cited recent Supreme Court precedent as evidence. McMorris Rodgers highlighted the Environmental Protection Agency’s loss in West Virginia v. EPA, in which the Court invoked the “major questions doctrine,” a legal doctrine limiting of the executive branch’s ability to permissively interpret Congress’s statutory language. She also referenced the Court’s rejection of the Center for Disease Control’s eviction moratorium and the Occupational Health and Safety Administration’s vaccine or testing mandate.

“Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats,” McMorris Rodgers wrote.

“I assure you the Committee and its members will exercise our robust investigative and legislative powers to not only forcefully reassert our Article I responsibilities, but to ensure the FCC under Democrat leadership does not continue to exceed Congressional authorizations,” she added.

Is net neutrality coming back?

In April 2021, McMorris Rodgers co-signed a letter with numerous congresspeople urging Rosenworcel to reject net neutrality, a policy supported by the chairwoman.

Today’s FCC is evenly split between Republicans and Democrats, one commissioner short of the standard five. President Joe Biden nominated Gigi Sohn for the fifth spot, but her nomination is stalled due to Republican opposition in the Senate. Since Sohn supports net neutrality, some experts believe the FCC may once again pursue the policy should Sohn be confirmed.

July 28 saw the introduction of a bill to reimplement Title II regulations on broadband providers, paving the way for a second attempt at “net neutrality” rules for the internet.

Led by Sen. Ed Markey, D-Mass., along with co-sponsors Sen. Ron Wyden, D-Ore., and Rep. Doris Matsui, D-Calif., the comically named Net Neutrality and Broadband Justice Act would classify ISPs as common carriers and give the Federal Communications Commission significant power to regulate internet issues such as pricing, competition, and consumer privacy.

Markey claims that the deregulation of the internet under former FCC Chairman Ajit Pai left broadband consumers unprotected. But as data has shown, and Taxpayers Protection Alliance’s own investigation highlighted, no widespread throttling, blocking or other consumer harm occurred after the Title II rules were repealed.

Randolph May, president of the Free State Foundation, noted after Markey’s bill was released that nearly all service providers’ terms of service contain legally enforceable commitments to not block or throttle the access of their subscribers to lawful content.

Markey said his legislation, which would codify broadband access as an essential service, will equip the FCC with the tools it needs to increase broadband accessibility.

The country already has the tools it needs to close the digital divide, with billions in taxpayer dollars flowing to every state to boost broadband access. For example, less than $10 billion in federal funding was dedicated to broadband in 2019, but an incredible $127 billion-plus in taxpayer dollars will be dedicated to closing the digital divide in the coming years. That doesn’t even count the nearly $800 billion in COVID-19 relief and stimulus funding that could be used for multiple issues, including broadband growth.

The bill’s proponents say that the FCC can foster a more competitive market with the passage of the legislation. FCC’s data already indicate the market is extremely competitive, with 99 percent of the U.S. population able to choose between at least two broadband providers. That doesn’t even account for wireless carriers and their rapid development of 5G.

The Net Neutrality and Broadband Justice Act may instead harm the ability of broadband infrastructure to grow without funneling even more taxpayer money toward the cause. Studies have shown that private provider investment increased after the regulatory uncertainty of Title II rules were removed. Prior to the reversal of the 2015 Open Internet Order, broadband network investment dropped more than 5.6 percent, the first decline outside of a recession, the FCC reported.

US Telecom reported that capital expenditures by ISPs totalled $79.4 billion in 2020 and grew to $86.1 billion in 2021.

Michael Powell, president and CEO of NCTA – The Internet & Television Association, called the issue of net neutrality “an increasingly stale debate” with justifications for it that “seem increasingly limp.”

“In the wake of the once-in-a-lifetime infrastructure bill, we need to be focused collectively on closing the digital divide and not taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason,” he said. “Building broadband to unserved parts of this country is a massive, complex, and expensive undertaking. Slapping an outdated and burdensome regulatory regime on broadband networks surely will damage the mission to deploy next-generation internet technology throughout America and get everyone connected.”

Again, the specter of Title II regulations rears its ugly head for no discernible reason other than the government’s insatiable need for control. The broadband market has proven itself as a market that functions better with a light-touch approach, so we hope that Congress says not to this misguided bill.

Johnny Kampis is director of telecom policy for the Taxpayers Protection Alliance. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

The Net Neutrality and Broadband Justice Act would give the FCC regulatory authority over broadband by classifying those services as Title II as defined in the 1934 Communications Act. Under Title II, the FCC would have greater regulatory muscle to make providers respect the principle of common carriage – that is, the traffic on their networks will not be throttled, sped up or given preference. Under the current light touch Title I – which was reinstituted by the 2017 commission under chairman Ajit Pai – the FCC does not have that authority, and the commission has previously been blocked by courts to bring net neutrality under Title I.

“My legislation would reverse the damaging approach adopted by the Trump FCC, which left broadband access unregulated, and consumers unprotected. It would give the FCC the tools it needs to protect the free and open internet, creating a just broadband future for everyone in our country,” Senator Edward Markey, D-Mass., said during a virtual press conference hosted by Public Knowledge on Thursday.

Markey noted that the majority of Americans and Republicans favor restoring net neutrality rules in the country.

Public Knowledge, an advocacy group for an open internet, was co-founded by Gigi Sohn, who was nominated by President Joe Biden to be the fifth FCC commissioner. The vote to confirm in the Senate has not happened yet, as some Republicans have complained about Sohn’s ability to be impartial on the commission.

“We’ve gone 544 days into the Biden administration without a fully functional agency. It’s time for Senate leadership to end this senseless delay and get the agency back to full capacity,” said Matt Wood, vice president of policy and general counsel at Free Press Action, in a press release welcoming the bill.

Reintroduction of bill comes as Sohn’s nomination to FCC appears to falter 

Sohn, who would be the party tiebreaker on the commission, would have bolstered the FCC’s chance to press for a reclassification of broadband services under Title II. But the longer a vote is not held, the less optimistic some say they are getting that a vote will be held before a midterm election in November that could flip the Senate red.

“Confirmation is still possible, but with the extended August recess and looming midterm election, there aren’t a lot of legislative days to get the job done,” said former FCC Chairman Richard Wiley at an event late last month.

Republican Commissioner Nathan Simington previously said that he would welcome congressional action on net neutrality – instead of an FCC vote on it.

“I have previously stated that the FCC’s 2015 Net Neutrality rules were the right approach,” said FCC Commissioner Geoffrey Starks in a press release. “That approach is undergirded by a voluminous record and overwhelming public support, and it has been tested in court. The Net Neutrality and Broadband Justice Act would codify just that,”

The bill comes after FCC Chairwoman Jessica Rosenworcel has repeatedly said that she believes net neutrality should be the guiding principle for the internet economy. Rosenworcel was defiant in her support of the principle in response to a letter from Republican representatives who encouraged her not to change her mind on it.

She added in a statement after the bill’s introduction that despite the FCC having the authority it needs to implement net neutrality, “legislation that helps ensure it is the law of the land is welcome.”

“For anyone who wants more innovation, more voices and less corporate control of the internet, net neutrality is an absolute no-brainer,” said Ron Wyden, D-OR, who co-introduced the bill. In 2018, Verizon admitted to throttling the wireless speeds used by California firefighters who were working on a large fire – one of the examples used to illustrate the imposition of such rules.

As such, California has gone its own way in lieu of inaction from Washington. The state won a court battle this year from broadband industry that challenged its own net neutrality law. The law made AT&T pull free sponsored applications to residents.

Critics of the net neutrality measure from the broadband industry

But broadband service providers and the commission that reversed net neutrality rules don’t see it that way. They say that regulations imposed by a net neutrality framework hinders innovation and competition in the market – including being able to provide free access to certain applications.

Michael Powell, CEO of trade association NCTA, said this bill will have a negative effect on closing the digital divide.

“In the wake of the once-in-a-lifetime infrastructure bill, we need to be focused collectively on closing the digital divide and not taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason,” he said.

“Slapping an outdated and burdensome regulatory regime on broadband networks surely will damage the mission to deploy next-generation internet technology throughout America and get everyone connected,” said Powell.

The Wireless Internet Service Providers Association also came out against the bill, saying heavy regulation would hamper their ability to serve underserved areas of the country. “The bill’s Title II requirements would create real threats to their ongoing viability,” the release said.

“Net neutrality may be a mixed bag, but common carrier regulation would inhibit competition, private investment and innovation, and further confound the complex task of eradicating the digital divide,” it added.

Another trade group USTelecom said it is concerned such regulation would hamper investments in broadband networks. “There is bipartisan support for net neutrality, but legislative proposals that would put any of this progress at risk are not the right answer,” said CEO Jonathan Spalter in a release. “Let’s keep our focus on moving consumers’ internet experiences forward, not backward.”

Non-profit research institution the Free State Foundation added that this type of bill will impose heavy-handed regulation that will harm consumers.

“[T]here is no present evidence, and there hasn’t been any for years, that ISPs have engaged in any deliberate discriminatory conduct,” said the FSF in a press release. “Almost all ISPs’ terms of service contain legally enforceable commitments not to block or throttle subscribers’ access to lawful content.

“To the extent that a couple of old incidents are cited that conceivably would run afoul of stringent anti-discrimination prohibitions, they have been isolated and quickly remedied,” the FSF added. “That’s why the net neutrality advocates are left to conjecture about what ‘might,’ ‘could,’ or ‘possibly’ happen absent new regulation, rather than identifying any existing problem warranting costly new regulatory mandates.”

With reporting by Riley Haight.

The June 30 high court ruling found, in West Virginia v. EPA, that the Environmental Protection Agency has limited regulatory authority, and that Congress alone has the power to decide on “major questions” of “vast economic or political significance.” The court effectively decided in favor of the so-called “major questions” doctrine, a conservative legal theory that seeks to maintain separation of powers by allocating “major questions” as the responsibility of Congress alone.

In turn, that theory contrasts with but does not explicitly overrule the still-valid doctrine known as Chevron deference. Chevron deference holds that where federal agencies are given legislative delegation by Congress, they are allowed reasonable interpretation of that authority.

Several experts are concerned, according to Protocol, that the ruling could affect the plans of tech regulators to implement laws under their jurisdiction. FCC Chairwoman Jessica Rosenworcel recently reaffirmed her support for net neutrality rules to prevent internet service providers from slowing or blocking web traffic, and supporters fear that the EPA decision could prevent further action at the FCC.

But experts Broadband Breakfast spoke to don’t exactly see it that way for the commission.

Chevron deference ‘increasingly in eclipse.’

“Ninety-eight percent of the decisions that the FCC makes – at least – are not going to be considered major question cases if they ever get to review,” Randolph May, founder and president of the Free State Foundation, said in an interview with Broadband Breakfast, adding that the doctrine of Chevron deference (after the 1984 Supreme Court decision Chevron v. Natural Resources Defense Council) is “increasingly in eclipse.”

Meanwhile, Harold Feld, senior vice president of internet advocacy group Public Knowledge, also told this publication that while, “I don’t think the major question doctrine applies to much of what the FCC does.”

It may, however, have an impact on the timeliness of the agency, including any decision it makes on net neutrality, he said.

Harold Feld

There will be an additional need to prove that the actions of the agency are in line with not merely a reasonable interpretation of the statutory authority but also consistent with previous practices, he said.

Agencies must also consider “how expansive is [a statute] really until it becomes a major question that Congress has to be even more specific about.”

The impact for agencies in the lower courts must also be considered, continued Feld. For decades, Chevron deference has been the standard in the courts. It allows for agencies to have a framework to determine how lower courts will analyze cases, he said. The undermining of Chevron deference will bring back the “wacky uncertainty that caused the Supreme Court to implement Chevron in the first place.”

The ambiguity that results from the ruling may have a greater impact on the Federal Trade Commission, Feld said. “It is clear that Congress intended the FTC to do rulemaking, but it is also clear that they haven’t done it before,” Feld explained. “So do they need special authorization from Congress now?”

Measurement Lab says its mission is to track and measure internet connectivity and use, deploying its version of the open-source measurement software NDT as a performance metric for a connections’ bulk transport capacity.

But on Wednesday, the lab’s fellows said the tool can also help identify potential traffic prioritization strategies run by internet service providers. NDT can provide a graph of internal network behavior to find whether traffic blockage occurs within the internet service provider of the user or elsewhere.

NDT can also run measurement on a network to determine the quality of experience, or user satisfaction, within the network, the research fellows claim.

“Although network operators, policymakers, or any entity that does not control either end of network connections are interested in measuring [quality of experience] of the end-users, measuring it at scale is non-trivial,” read the research report. Researchers associated with M-Lab said that the process described can allow third-party users to make active or passive measurements in determining the quality of connections.

Since 2017, internet service providers have been free to prioritize traffic on their networks after the Federal Communications Commission overturned rules imposing net neutrality, which forbids providers from preferring certain traffic. FCC Chairwoman Jessica Rosenworcel has repeatedly said she thinks the re-imposition of net neutrality rules is the best path forward for the internet economy.

Tool can help providers improve network experience

The lab’s tool can be used to determine the expected network performance as well as incidences of performance degradation, which the fellows said can help network operators improve performance and potentially prevent future incidences.

“It’s important to measure such that we can understand the individual’s ability to participate in basic activities such as paying bills, having access to information about their democracy,” said Lai Yi Ohlsen, director of the Measurement Lab at a Broadband Money Ask Me Anything event in June.

Through a four-step process, researchers can “depict a holistic picture of all the changes that happened before and during anomalous events,” read the lab’s research report.

In a keynote address at an event Thursday on net neutrality hosted by think tank The R Street Institute, the Republican commissioner — who has opposed the net neutrality provisions imposed in 2015 by the commission under the former President Barack Obama – indicated he would prefer legislative action on net neutrality policy to proposals of Democratic FCC commissioners to regulate it through policy of the commission.

“Personally I would welcome congressional action to put this issue to rest,” said Simington, “I think a good law would focus on preventing blocking.”

Under the administration of former President Donald Trump, the FCC had in 2017 reversed the Obama-era net neutrality provisions, which prevented internet service providers from having a hand manipulating the data traffic over their networks to do things like provide faster or free access to certain applications.

Simington’s comment is significant for two reasons: because it comes after FCC Chairwoman Jessica Rosenworcel told lawmakers earlier this year that she is committed to the idea of the restoration of net neutrality principles; and because the commission is on the cusp of a Senate-approved fifth commissioner in Democrat and net neutrality advocate Gigi Sohn, which would break the 2-2 party split and would signal less friction when approving the Democratic agenda.

Thursday’s event also featured a panel that discussed issues such as whether a new agency must be created to deal with issues of net neutrality or whether an existing body such as the Federal Trade Commission can fulfill that role.

In January, the court turned back industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, who had sought to overturn California’s SB 822 on the grounds that the Federal Communications Commission federal rules on net neutrality conflict with California’s state level rules.

Then, the appeals court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

On Wednesday, the appeals court refused to reconsider whether the California law had been preempted by the FCC’s decision.

In January 2018, the FCC – administered by then-Commissioner Ajit Pai – rescinded rules put in place in 2015 by the Obama administration that had reclassified broadband services from “information services” to “telecommunication services.” The latter category is subject to far more regulations.

Later that year, California passed SB 822, putting net neutrality requirements in place for California consumers, even after the rules had been gutted at the federal level by the FCC.

On the federal level, the D.C. Circuit Court of Appeals upheld the Trump administration’s removal of net neutrality requirements in October 2019. Although the Pai FCC’s reclassification was largely upheld by the D.C. circuit court, the victory was tempered by the court’s decision, by a two-to-one margin, to vacate the FCC’s having purported to preempt “any state or local requirements that are inconsistent with [the FCC’s] de-regulatory approach.”

In a tweet about Wednesday’s ruling, FCC Chairman Jessica Rosenworcel said:

• The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law. This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land.

“As expected, the 9th U.S. Circuit Court of Appeals has rejected yet another attempt by internet service providers to overturn California’s strong net neutrality law,” said John Bergmayer, Legal Director at Public Knowledge.

“The California net neutrality law is now undefeated in court after four attempts to eliminate it,” he said. Net neutrality protections nationally continue to be common sense and popular with the public among all ideologies. It’s good news that Californians will continue to enjoy this important consumer protection, and we look forward to a full Federal Communications Commission restoring net neutrality nationwide.”

The ruling comes after industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, sought to overturn California’s law on the grounds that the Federal Communications Commission’s now-abandoned federal rules on net neutrality conflict with California’s state level rules.

The court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

SB 822, or the California Internet Consumer Protection and Net Neutrality Act of 2018, restricts internet service providers from some activities. For example, the state law prevents paid prioritization, or agreements that would optimize data transfer rates large companies including Facebook, Google and Netflix.

The law also prohibits so-called “zero-rating” practices that some believe exploit consumers by allowing free access to some services but not others.

John Bergmayer, legal director at Public Knowledge, called the ruling a “great decision and a major victory for internet users in California and nationwide.”

“When the FCC has its full complement of commissioners, it should put into place rules at least as strong as California’s nationwide, making some state measures unnecessary. But even after that happens, this decision clarifies that states have room to enact broadband consumer protection laws that go beyond the federal baseline.”

But Randy May, president of the Free State Foundation, said “like a lot of Ninth Circuit decisions, it is arguable that the court got the law wrong regarding whether California’s net neutrality law is preempted. Given the inherently interstate nature of today’s tightly integrated broadband internet networks, there’s a good chance that other circuits might reach a different conclusion regarding preemption.

May said that the risks of a patchwork of state regulations “should prompt Congress to resolve the decades-old net neutrality controversy by adopting a new law that prevents consumer harm while recognizing the technologically dynamic nature of today’s Internet ecosystem.”

The opinion was authored by Ninth Circuit Chief Judge Mary Schroeder and joined by Judge Danielle Forrest with a concurrence by Judge J. Clifford Wallace.

Rosenworcel was responding to an April letter by over two dozen members of Congress, who urged the chairwoman to maintain the current “light touch” regulations imposed by the 2017 commission, led by chairman Ajit Pai, who was appointed by then-President Donald Trump. That change rolled back net neutrality rules imposed by the 2015 Obama-era commission, which prevented internet service providers from influencing the content on their networks, including barring carriers from providing certain services for free over their networks – also known as “zero rating.”

In her letter on December 28, Rosenworcel, who was confirmed as commissioner of the agency by the Senate earlier that month, said the net neutrality principles of 2015 were the “strongest foundation” for the internet economy as a whole and is “fundamental” to the “foundation of openness.”

“Those principles drove investment on the edges of the network, which network operators responded to by investing in infrastructure that allows consumers to access the services of their choosing,” Rosenworcel said in the letter.

“I stand ready to work with Congress on this topic, as necessary,” she added. “However, I continue to support net neutrality and believe that the Commission has the authority to adopt net neutrality rules.”

The lawmakers – which include Cathy McMorris Rodgers, R-Washington, and Bob Latta, R-Ohio – used as support the efforts of service providers to maintain a robust network during the pandemic, as well as their willingness to waive late fees and open Wi-Fi hotspots as additional reasons for the commission not to impose further regulations on business. The letter also noted that the Department of Justice’s withdrawal of a lawsuit against a net neutrality law in California led to two providers axing services that relied on zero rating protections.

The lawmakers challenged previous comments made by Rosenworcel, who said that it was unfortunate that California had to fill a void left by the net neutrality rollbacks. But Rosenworcel reiterated those comments. “It is unfortunate that individual states have had to fill the void left behind after the misguided roll back of the Commission’s net neutrality policies,” she said in her letter.

And while the lawmakers said they “agree that harmful practices such as blocking, throttling, and anticompetitive behavior should not be permitted…we can achieve this without heavy-handed overregulation.”

The current make-up of the FCC includes two Democrats and two Republicans. President Joe Biden’s pick for a fifth Democratic commissioner to break the party deadlock, net neutrality advocate Gigi Sohn, is still awaiting a confirmation vote by the Senate.

This week, Sohn received endorsements from former FCC officials, but has received some apprehension from some lawmakers and a police association over her stance on end-to-end encryption.

Rosenworcel is already chairwoman of the FCC by virtue of being named to the position by President Joe Biden. The president picks the chair of the agency from among the commissioners. However, Rosenworcel’s term as commissioner is to expire unless the Senate confirms her appointment to another term.

The committee on Wednesday also approved Alvaro Bedoya, a staunch privacy advocate, as commissioner of the Federal Trade Commission and had rounds at questioning Alan Davidson, who was nominated as head of the National Telecommunications and Information Administration, which will oversee $42.5 billion in broadband funds from the recently signed Infrastructure Investment and Jobs Act.

On mapping, Sohn called for a “crowdsourcing” effort amongst states to improve the quality of broadband mapping, as the agency has started to do. “A lot of states have maps already and they are quite accurate,” she said. Though she could not commit to a timeline, Sohn said that there could be no “good policy without good maps” and that if she were confirmed, she would dedicate herself to improve the FCC’s broadband maps.

Sohn also voiced her support for municipal broadband. “I have supported municipal broadband for a very long time,” she said, adding she supports open access models that allow service providers to share the same network. Sohn pointed to Utah as an example, where the model has been implemented successfully. She stated that the model has led to “enormous competition” for service providers.

When pressed as to whether the FCC should be able to preempt states and dictate how they implement their broadband policy, Sohn said she would like the FCC to have a better relationship with states. “If I am confirmed, one of the things I would ask the chairwoman [to use me as] a liaison to the states, because I’ve really formed very good relationships with them,” she said. “In the past, we have not [reached out] to the states and made them partners. We have been more adversarial.”

Net neutrality, broadband standards and Big Tech

Sohn also came out in support of net neutrality. “What I am concerned about now, with the repeal in 2017 of the net neutrality rules and the reclassification of broadband, is that we have no touch,” she said. “[Net neutrality] is really much broader than [preventing] blocking and throttling. It is about whether or not bandwidth – which we all agree is an essential service – should have government oversight, and right now, it does not.”

Legislators also questioned Sohn on her perspectives regarding broadband standards. Sen. Mike Lee, R-Utah, asked Sohn what standard – whether it was 100 Mbps download with 20 Mbps upload, or 100 Mbps symmetrical service – would bridge the digital divide. Sohn stated that it would take more than just the deployment of infrastructure to bridge the digital divide.

“I have urged that Congress adopt a permanent broadband subsidy like the Affordable Connectivity Program – which is more money but is not permanent,” Sohn said. “You still always have the adoption problem as well, where people do not have the digital literacy, sometimes not even [actual] literacy, to be able to use the internet.”

Insofar that capacity and internet speeds are concerned, Sohn emphasized that the Infrastructure Investment Jobs Act “does prefer scalable networks to meet the needs of tomorrow.”

“What we do not want, I would think – or I would not want – is to come back in five or ten years and say, ‘Oh, my goodness! We spent all this money, and we still have slow networks, and we still have areas that are not served,” she said. “The ability to have technologies that can grow over time.” Sohn stopped short of explicitly listing specific scalable technologies.

On Big Tech, Sen. Ted Cruz, R-Texas, described “a confluence of liberals advocating for censoring anyone with whom they disagree,” and a situation where “big tech [is] eagerly taking up the mantle to censor those with whom they disagree.” Cruz asked Sohn how she could guarantee she would not “use the power of government to silence.”

Sohn said that she would “make that commitment” to not act in such a way and added that she would “take any allegations of bias extremely seriously.” She said that she will continue to work with the Office of Government Ethics to dissuade any concerns people may have about her biases.

A date for a vote on Sohn and Davidson’s nominations has not yet been scheduled.

The White House released a fact sheet on the goals and the actions to be taken to achieve them.

The order would, among other things, task the Federal Communications Commission with reinstituting pre-Trump administration net neutrality rules.

Net neutrality refers to the concept that broadband providers must not block or throttle the content that consumers seek to access on the internet, or provide preferential access to content by business partners.

Under former President Barack Obama, the FCC in February 2015 enacted net neutrality rules promoting what his administration called “the open, fair, and free internet as we know it today.”

Broadband pricing policy

Biden’s order also tackled broadband policy and the digital divide more broadly.

It pointed to the 200 million Americans that live in regions with only one or two internet service providers and stated that this contributes to inflated internet service prices up to five times higher than in areas with more than two ISPs.

The order also condemned relationships between landlords and broadband providers that block new providers from expanding or improving broadband infrastructure to unserved and underserved areas, and it urged the FCC to enact rules to ban such deals and relationships.

To improve price transparency, Biden also urged the FCC to implement a “Broadband Nutrition Label” and require that all broadband providers report their service plans and rates to the FCC for evaluation.

Additionally, the plan directed the FCC to address unreasonably high, early termination fees enacted by broadband providers. The Biden administration argues that these fees are often in place only to discourage consumers from switching to what may be a superior internet service.

Big tech a target, too

In addition to broadband policy, the order would also take aim at data collection and mergers by big tech companies. The factsheet specifically mentioned that the order would tackle “kill acquisitions” designed to stifle perceived competitive threats to tech companies and pointed out that federal regulatory bodies have not done enough to prevent these mergers.

The administration would adopt a policy to greater scrutinize potential mergers, according to the White House fact sheet.

Additionally, the administration also condemned data collection policies by big tech companies, pointing to business models completely dependent on harvesting of sensitive consumer data. To address this, he tasked the Federal Trade Commission to draft new rules on consumer surveillance and data collection.

Net neutrality advocate at the FCC

FCC Acting Chairwoman Jessica Rosenworcel has been a longtime advocate for strong net neutrality laws. Though her critics have argued that there have been precious few examples of companies throttling their consumers internet speed, Rosenworcel has supported initiatives that would classify internet service providers as “common carriers,” and would forbid them from interfering in a user’s internet speed or the content they view.

By the summer of 2018, the country had changed its position on the issue when the Trump-era FCC voted to roll back Obama-era rules that, in 2015, cemented rules bolstering net neutrality. The roll-back essentially allowed the telecoms to manage and give preferential treatment to certain traffic that run on their networks.

But something changed. It started when the Department of Justice — the new one under the administration of President Joe Biden — withdrew a lawsuit started under Trump’s presidency against California for its proposed net neutrality rules. After the internet service providers lost a legal challenge to the proposed rules, California became the first state to implement the new legislation.

Join the Broadband Breakfast Live Online “Ask Us About Net Neutrality” on Wednesday, May 12, 2021. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.

Then the Biden White House appointed Tim Wu, a fierce advocate for and who coined the term “net neutrality,” to the National Economic Council this year.

There’s an emerging debate across the country about whether more states will follow suit or if a federal-level plan will emerge first.

Before that’s answered, Broadband Breakfast is taking a step-back and has put together an explainer on the issue to get you up-to-speed on its history and what’s at stake.

• Broadband Breakfast Explainer 1 (Net Neutrality): On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate
• Broadband Breakfast Explainer 2 (Spectrum): Is Spectrum Sharing a Key to Broader Connectivity Goals?
• Broadband Breakfast Explainer 3 (Section 230): With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight 
• Broadband Breakfast Explainer 4 (Antitrust): Antitrust Heats Up as Biden Selects Tech Critic Jonathan Kanter for Top Enforcement Spot

What is net neutrality?

Net neutrality is the concept that traffic on networks cannot be blocked, slowed, accelerated or otherwise altered by internet service providers. In essence, it is the concept that legal internet activity must be treated equally.

The term was coined by Columbia University media law professor Tim Wu in 2003, in a paper about online discrimination. It was an extension of the longstanding concept of a common carrier, used to describe the role of telephone systems as infrastructure that simply transports traffic from one destination to the next with no influence.

The common carrier concept in common law countries says that, regardless of who is using the internet, what content is on it, the website being accessed, or the platform and application it is operating on, nothing will be discriminated against or favored more than another.

What happens when net neutrality is abandoned?

When net neutrality rules were rolled-back in 2018, the ISPs struck. According to Bloomberg, citing research out of Northeastern University and the University of Massachusetts, Amherst, wireless carriers have since slowed internet traffic to and from applications like YouTube, Netflix, and Microsoft’s Skype video chat service.

Proponents of zero-rating, the concept that includes apps not counting against users’ monthly data allowance, said it would provide for opportunities for those to experience these services without incurring cost – perhaps in overage charges. Opponents, however, argued it could possibly create an information divide, whereby the less advantaged would be forced to consume certain services and not others.

The rocky history of net neutrality

In the early 2000s, the Federal Communications Commission (FCC), a U.S. regulatory agency, required broadband providers to share their infrastructure with competing firms. In 2005, those requirements were struck down by the Supreme Court. The debate at the time was trying to determine if broadband service providers should also be considered as information services, which allows users to publish and store information online or on telecommunication services.

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The Obama administration approved net neutrality rules in 2015. This partially barred ISPs like AT&T and Comcast from purposefully increasing, sometimes called throttling, or decreasing speed access to websites based on demand or business preferences.

On the Obama White House Archives site, it says that most internet providers have treated internet traffic equally, “that an entrepreneur’s fledgling company should have the same chance to succeed as established corporations, and that access to a high school student’s blog shouldn’t be unfairly slowed down to make way for advertisers with more money.”

On February 26, 2015, the FCC voted in favor of strong net neutrality rules and on June 14, the same year, the U.S. for the District of Columbia fully upheld the FCC’s net neutrality rules. The Obama administration called it a victory for “the open, fair, and free Internet as we know it today.”

On November 21, 2017, FCC Chairman Ajit Pai, appointed by former President Trump, unveiled a plan to roll back the Obama administration rules. The plan went into effect on June 11, 2018, and on October 1, 2019, the D.C. Circuit Court of Appeals upheld the FCC’s plan to repeal most of the provisions of net neutrality but struck down a provision that would block states from implementing their own open internet rules. Chairman Pai said in a statement that the appeals’ decision was a “victory for consumers, broadband deployment, and the free and open Internet.” “The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior [Obama] Administration,” the statement said.

In 2018, the Senate voted to overturn the repeal of net neutrality but the resolution stalled in the House. The House then put it to a vote again in 2019 under the “Save the Internet Act,” but it was effectively dead in the water, at least until 2021.

In favor of net neutrality

Advocates in favor of net neutrality focus on providing smaller companies equal opportunity to thrive. By not allowing ISPs to determine the speed at which consumers can access certain websites or online services, smaller companies will be more likely to enter the market and create new services. Smaller companies are protected in the sense that they may not be able to afford “fast lane” access, while larger, more established companies can.

These advocates for net neutrality point out that several well-established social network websites were created without much seed capital. Had these small businesses been forced to pay extra in order to be as accessible online as their competitors, success may never have come.

Proponents of net neutrality include:

• Human rights organizations
• Consumer rights advocates
• Some software companies

These groups argue that cable companies should be deemed “common carriers,” similar to public utility companies or public transportation providers, who are by law, forbidden from discriminating among their users.

Public Knowledge, a non-profit Washington, D.C.-based public interest group focused on competition, digital choice in the marketplace, and an open standards and end-to-end internet, is in favor of net neutrality.

It says that without net neutrality rules, “ISPs like Verizon and Comcast can prevent users from visiting some websites, provide slower speeds for services like Netflix and Hulu, or even redirect users from one website to a competing website.” Public Knowledge claims that consumers would ultimately be hurt by anti-net neutrality policies, bearing the additional costs on things like their monthly Netflix bill or in the cost of goods from a local online store.

Against net neutrality

Advocates against net neutrality focus on investment incentives and cost concerns for broadband infrastructure. If ISPs are forced to treat all internet traffic equally, the government will ultimately discourage the investment in new infrastructure, and will also see ISPs be slow to innovate. Upfront costs with laying down fiber optic cable can also be very expensive. They say that not being able to charge more for more challenging areas of access will make the investment harder to pay off.

Opponents of net neutrality include:

• Conservative think tanks
• Major telecommunications providers
• Some hardware manufacturers

Telecommunication providers argue that “they must be allowed to charge tiered prices for access in order to remain competitive and generate funds needed for further innovation and expansion of broadband networks, as well as to recoup the costs already invested in broadband.”

Having less oversight on internet service by allowing some ISPs to charge for access to some content would lead to free access to certain sites, reports IT Pro. For example, if ISPs charged more money to bandwidth-hungry companies like Netflix for using their infrastructure, they could offer access to sites like Wikipedia or Facebook for free—even if a consumer had no internet contract.

Net neutrality controversies

The repeal of net neutrality rules has exposed some of the complexities of allowing ISPs to do what they wish with internet traffic. That isn’t more true than for the vertically-integrated providers, who both own the networks and content services that run on them. This has created a debate about possible anti-competitive behavior: what would stop a provider to block or slow traffic on a competing service and speed-up or eliminate data usage on their own services?

That’s exactly what happened with AT&T’s WatchTV streaming service, which was a new product in 2018, following its acquisition of Time Warner (now WarnerMedia). That year — after California backed down from cracking down on zero-rating —  the service gave subscribers the option of a subscribing to a bundle of channels with no charge against their data allotment. (After California made its net neutrality legislation law this year, AT&T axed its zero-rating practice in the state and said it would likely have to do the same with the rest of the country.)

And then there were the 2018 California wildfires, some of the worst in the state’s history.

The bombshell from that was the Santa Clara fire department alleging Verizon had throttled its services, which “had a significant impact on our ability to provide emergency services,” the department said, according to Ars Technica.

The evidence was submitted as part of a lawsuit to reinstate federal net neutrality rules.

The telehealth question

The wildfires incident may take some bite out of the argument that net neutrality rules should be loosened to allow special exemptions to emergency services, but it’s quickly becoming a hot topic for another emerging segment: telehealth.

The Covid-19 pandemic has effectively upended the traditional in-person setting for nearly everything. But it’s especially problematic for medical services.

Critics of the net neutrality law in California are reportedly concerned that a telehealth app, VA Video Connect, whose use doesn’t count against users’ data caps, may be blocked under the legislation.

Boost Mobile, seeing the emerging opportunity, recently announced that it is bundling telehealth services with its packages.

There are exemptions that can be made in state and federal laws for emergency and health services, so time will tell what those could look like.

The future of net neutrality

As the federal government still has net neutrality on the ropes, states have stepped in to guard the internet’s traffic neutrality. Both proponents and opponents of net neutrality have argued that internet freedom will prevail if their side wins.

As of January 2021, 19 states, including the District of Columbia and Puerto Rico, introduced legislation in the 2020 legislative session that supports net neutrality.

Though some have taken net neutrality into their own hands, such legislation, even on a state level, can be challenging to implement. The FCC has claimed only itself has the authority to make these kinds of regulations, and that local and state governments cannot pass laws inconsistent with federal net neutrality rules.

In October 2019, a federal appeals court ruling in October 2019 largely upheld the decision to abolish net neutrality, “but ordered the FCC to examine its effect on public safety, federally subsidized broadband services, and utility pole regulations.”

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“Absent congressional action, this yo-yo will continue,” said Morgan Reed, whose organization represents app makers and connected device companies. Reed proposed Congress deal with the matter by, once and for all, putting it in the Telecommunications Act.

The debate about net neutrality, which stipulates that all internet traffic should be treated equally and that no telecom should be able to accept payment to speed up applications, has picked up since the Federal Communications Commission changed leadership and President Joe Biden took office.

The acting chairwoman has been a supporter of net neutrality. Biden’s justice department dropped a lawsuit recently challenging a proposed net neutrality law in California, which AT&T said forced it to stop offering free services because it would not be able to give it preferential treatment under the proposed law.

All roads seem to point to the reinstatement of net neutrality rules once instated by the Obama-era FCC but was reversed by the Trump-era regulator.

Currently, telecommunications is categorized as a Title I service, meaning it is spared from additional FCC regulatory burdens like managing content over its networks. That can be reversed if it is reclassified as a Title II, which effectively bring it under the ambit of the net neutrality rules.

Kristine Hackman, vice president of policy and advocacy at US Telecom, said operating under Title I regulations is not appropriate and outdated.

“We can’t regulate internet well with a statute that was written before World War II!” She defended ISPs and said they are not engaging in throttling, despite what she called false accusations suggesting otherwise, and said it is not in their natural conscience to even try to throttle since the consumer is in their minds.

Part of the issue with the approach to net neutrality is the confusion surrounding who governs the issues. Jon Peha, professor at Carnegie Mellon University, said that the newspapers these days confuse legal authority with the rules, saying the FCC’s authority to regulate is muddied with what authority the Federal Trade Commission has. He said the current position of the FCC is that it has no authority to deal with net neutrality, privacy, and even pole attachments, explaining that its authority over communications infrastructure is unclear.

Group Founder Gigi Sohn, now a Benton Institute for Broadband and Society senior fellow and public advocate, said that through her professional relationship with Laurie Racine, now president of Racine Strategy, that she became “appointed and anointed” to help start the interest group.

Together with David Bollier, who also had worked on public interest projects in broadcast media with Sohn, and is now director of Reinventing the Commons program at the Schumacher Center for a New Economics, the two cofounded a small and scrappy Public Knowledge that has become a non-profit powerhouse.

The secret sauce? Timing, which couldn’t have been better, said Sohn. Being given free office space at DuPont Circle at the New America Foundation by Steve Clemmons and the late Ted Halstead, then head of the foundation, was instrumental in Public Knowledge’s launch.

The cofounders met with major challenges, Sohn and others said. The nationwide tragedy of September 11, 2001, occurred weeks after its official founding. The group continued their advocacy of what was then more commonly known as “open source,” a related grandparent to the new “net neutrality” of today, she said.

In the aftermath of September 11, a bill by the late Sen. Ernest “Fritz” Hollings, D-S.C., demonstrated a bid by large copyright interest to force technology companies to effectively be the copyright police. Additional copyright maximalist measures we launched almost every month, she said.

Public Knowledge grew into something larger than was probably imagined by the three co-founders. Still, they shared setbacks and losses that accompanied their successes and wins.

“We would form alliances with anybody, which meant that sometimes we sided with internet service providers [on issues like copyright] and sometimes we were against them [on issues like telecom],” said Sohn. An ingredient in the interest group’s success was its desire to work with everyone.

Congress didn’t have a clue on digital rights

What drove the trio together was a shared view that “Congress had no vision for the future of the internet,” explained Sohn.

Much of our early work was spend explaining how digitation works to Congress, she said. The 2000s were a time of great activity and massive growth in the digital industry and lawmakers at the Hill were not acquainted well with screens, computers, and the internet. They took on the role of explaining to members of Congress what the interests of their constituents were when it came to digitization.

Public Knowledge helped popularize digital issues and by “walking [digital information] across the street to [Capitol Hill] at the time created an operational reality with digitization,” said Bollier.

Racine remarked about the influence Linux software maker Red Hat had during its 2002 initial public offering. She said the founders of Red Hat pushed open source beyond a business model and into a philosophy in ways that hadn’t been done before.

During the early days of Public Knowledge, all sorts of legacy tech was being rolled out. Apple’s iTunes, Windows XP, and the first Xbox launched. Nokia and Sony were the leaders in cellphones at the time, augmenting the rise of technology in the coming digital age.

Racine said consumers needed someone in Washington who could represent their interests amid the new software and hardware and embrace the idea of open source technologies for the future.

Also speaking at the event was Public Knowledge CEO Chris Lewis, who said Public Knowledge was at the forefront of new technology issues as it was already holding 3D printing symposiums before Congress, something totally unfamiliar at the time.

Simington sits on a very different-looking FCC, which includes net neutrality advocates including Acting Chairwoman Jessica Rosenworcel.

Net neutrality regulations banning broadband providers from blocking or throttling internet traffic were repealed by the Trump Administration-era FCC in December 2017.

Speaking at a Free State Foundation event, Simington said that communications companies should be permitted to manipulate traffic for revenue – speeding up some traffic for whichever content provider pays – even though it exacerbates the oligopoly problem in the U.S. The reason? Many Americans don’t even have access to high-speed internet.

At the same time, he also argued that no broadband provider should be able to throttle data.

And he also argued that the internet should be treated like a utility with minimum standards, especially now that the pandemic has proved the importance of connectivity. “If utilities aren’t allowed to provide poor service, why should internet service providers be able to?” he said.

Simington also touched on the need for broadband infrastructure as people have become reliant on broadband at-home during the pandemic. “America’s hunger for wireless bandwidth has gone parabolic in the last 10 years,” he said.

Simington said that major players in the wired infrastructure industry are setting minimum bandwidth and latency – the speed of real-time communications – standards that would have seemed absurdly high just a few years ago.

Simington also said he believes funding and regulating infrastructure should be delegated properly between the state and federal government. States can and should have a role to play in regulating industries, he said.

Simington said he hopes that, in celebration of the 25-year anniversary of the Telecommunications Act of 1996, that Congress considers a refresh of the law as newer technologies, such as video communication, emerges.

Carr said at the Incompas Policy Summit on Feb. 9 that he would like to see those principles — including how the FCC should operate and regulate — insulated from political swings every election by codifying them in law.

Carr was addressing how to remove barriers to broadband access during his keynote at the Incompas summit. Noting the long-lasting effects of the pandemic, he said people are looking for stability and long-term solutions for the digital divide.

Like industry requiring certainty to invest in long-term infrastructure, Carr said the FCC needs rules that are set-in-stone to push forward on ambitious new policy approaches to close that digital divide.

Those policy changes can include rules on net neutrality, which is expected to be reviewed under FCC Acting Chairwoman Jessica Rosenworcel, who has come out in support of the need to ensure the telecoms can’t block or throttle certain internet traffic.

Part of finding a solution is being able to work with all stakeholders to come up with ideas that are workable for those impacted by broadband and data regulation.

He said he’s hopeful that this year will be a banner year for broadband deployment.

Rep. Bob Latta, R-Ohio, who was also speaking at the summit, praised Carr for listening to his constituents and taking their concerns back to Washington. He said a lot of republican rural areas don’t have broadband, which is a bipartisan issue.

Getting adequate broadband to everyone is a team effort that needs bipartisan support, industry support, and leaders on all levels, he noted.

Predicting that the new administration would try to reinstate authority over broadband internet access, Lindsay Stern, attorney and policy advisor at INCOMPAS, said a Democratic Federal Communications Commission would try to classify the internet service as a telecommunications service subject to Title II of the Communications Act, “with the previous forbearance that was granted in the 2015 Open Internet Order” under President Barack Obama.

Stern explained that to do this, the FCC would need to grant a petition for reconsideration of the FCC’s latest remand order which classified broadband internet access service as a Title I service. The agency would also need to issue a separate rulemaking, going a step further from reclassifying to reinstating the net neutrality rules, she said.

With ISP’s implementing data caps more than in the past, Stern predicted that now, there will be pressure to go beyond the 2015 net neutrality rules and address data caps and interconnection fees directly.

Stern postulated that if FCC Chairman Ajit Pai leaves, and with Commissioner Michael O’Rielly gone by the adjournment of Congress this year, and with Nathan Simington’s nomination does not get confirmed, Democrats would end up with a 2-1 vote majority at the agency.

Commissioner Jessica Rosenworcel and Commissioner Geoffrey Starks, the two Democrats on the five-member body, are both net neutrality supporters.

Because the remand order of the current FCC action on net neutrality has not yet made it into the Federal Register, which publication starts the timeline an entity to file a petition for reconsideration, it looks likely that Chairman Pai will not have time to respond to a petition for reconsideration by January 20, 2021.

That accelerates the timeline for net neutrality, Stern said.

However, if the FCC takes the Title II approach that former FCC Chairman Tom Wheeler took under Obama, that might create momentum for Congress to act.

INCOMPAS CEO Chip Pickering, a former Republican member of Congress from Mississippi, said that congressional intervention would provide long-term stability and certainty instead of four changes we’ve seen over the past decade with each new administration.

Pickering also projected bipartisan consensus on privacy regulations and Section 230 from the new administration. But coming to an agreement on antitrust enforcement will be much harder, he said, given the endurance of the consumer welfare standard.

Gaming out strategy over the next two months on Section 230 changes

On Section 230 reform, Stern said INCOMPAS thinks with a new Democratic commission, President Donald Trump’s petition by the Commerce Department’s National Telecommunications and Information Administration will be denied or just linger at the FCC: Both Rosenworcel and Starks have repeatedly said that the FCC should not be interpreting 230 and hence be the “president’s speech police.”

That said, the FCC might leave the petition open for the possibility of future action in case there’s no congressional agreement, she said.

INCOMPAS General Counsel Angie Kronenberg said the “pens down” edict recently issued by House Energy and Commerce Committee officials might also affect Section 230 changes.

Stern laid out several scenarios: If Pai wants to move forward with the rulemaking, and if Simington’s nomination does not move forward, the petition would have to be addressed in the commission’s December meeting because Commissioner O’Reilly would still have to vote on it despite his leaving at the end of the year.

If Simington does get confirmed and Pai has the votes for the January open meeting, she said the question would be whether the rulemaking would make it into the federal register before he leaves in order to set off the comment deadline.

Even if that happens, a new chairman does not have to act on the rulemaking at all . Or, the Democratic-named chairman could bring it the matter to a vote and then deny it.

Other broadband matters

INCOMPAS Government Relations Director Andrew Mincheff said Democrats would have an opportunity to shape broadband this administration, especially in light of Pai’s goal to end the agency’s Mobility Fund and move those dollars to the 5G Rural Broadband Fund, from which  the FCC would allocate $9 billion over 10 years for reverse auctions.

Chris Shipley, attorney and policy advisor at INCOMPAS, said the new administration would likely look at reform of the Universal Service Fund because the contributions factor has risen steadily over the last few years as accessible revenues have declined around commitments.

He referenced a conference from earlier this week with Mignon Clyburn and Commissioner O’Rielly.

Democrats have an interest in either a connections-based systems or expanding the base of accessible services

By contrast, Republicans seem more interested in addressing the rising contribution factor from general appropriations from Congress, he said. That would be a tough fight given how divided the new Congress will be.

Shipley suggested that reforms could include extending the revenue base and assessing broadband services and other telecommunications services.

Another option might be a connections-based system. Under this approach, either voice ir broadband connections would be assessed a monthly contribution, and a numbers-based system, under which each assigned North American telephone number would be assessed.

In 2017, the Republican-led Trump FCC ended less than three years of what some have criticized as utility-style regulation of the internet. Under Chairman Ajit Pai, the agency returned broadband internet access service to its long-standing classification as an information service under Title I of the Communications Act.

The circuit court upheld the vast majority of the Restoring Internet Freedom Order, but remanded three discrete issues for further consideration. These were its impact upon public safety, pole attachments, and universal service support for low income consumers through the Lifeline Program.

See “D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC,” Broadband Breakfast, October 7, 2019

During Tuesday’s meeting, the commissioners voted 3-2 on party lines to conclude that there was no basis to alter the agency’s conclusions from 2017.

“Competition has increased,” said Commissioner Brendan Carr, “with the percentage of Americans with more than two options for high-speed internet increasing by 52 percent, all while prices have been decreasing.”

Yet they largely avoided mention of the issues surrounding utility pole attachments and the Lifeline program, Republican commissioners talked about how different nations’ internet networks are holding up in comparison to the United States. They also joked about potentially having to pay for social media posts.

Carr said that the networks of counties that have taken a heavier or utility-style approach to regulating the internet have “strained to maintain quality and speed” throughout the global pandemic, referencing when European Union officials, in March, asked Netflix to reduce its video streaming quality to reduce network strain.

Chairman Ajit Pai reverted to emotional appeal, saying his family received violent death threats following the 2017 repeal Opponents of his ”internet freedom” order waged, he said, “one of the most dishonest scare campaigns ever seen.”

Pai maintained that the internet economy is as good as ever, with internet speeds and coverage readily increasing under his leadership.

Democrats say FCC data shows broadband markets are not competitive

Democratic Commissioners criticized the GOP members for doubling down on the issue in the midst of the pandemic. They urged greater regulation of broadband services.

Commissioner Jessica Rosenworcel disagreed with the idea that the 2017 net neutrality repeal aided consumers. “FCC data shows that our broadband markets are not competitive. Many in this country have no choice in broadband providers,” said Rosenworcel, adding that “this administration is suing states that try to close the broadband void created when the FCC stepped out.”

She called today’s vote an opportunity for the agency to step back in, saying the rollback of net neutrality does not get the country any closer to broadband for all. Rosenworcel also called for broadband to be regulated similarly to utilities, such as water and electricity.

Commissioner Geoffrey Starks criticized Carr and Pai’s arguments, saying that the successes of American networks are not due to changes on net neutrality. He further argued about negative outcomes for the FCC’s Lifeline Program because of reduced FCC authority to oversee ISPs.

“When the FCC added broadband access to Lifeline it was based under its Title II authority,” he said, adding “now with this strained legal reasoning the majority would rather disconnect over 8 million Lifeline subscribers, rather than subject ISPs to any FCC oversight.”

Starks said that of nearly 300 broadband plans in 28 cities across the world, the United States has the highest average monthly prices for home broadband.

“30 percent of Black, Latinx, and other non-white households earning less than $30,000 a year have missed at least one internet bill since the pandemic,” Starks said.

Referencing the Chairman’s Keep Americans Connected Pledge, Starks said “While I’m glad internet service providers pledged not to disconnect consumers, the order has removed the FCC’s ability to enforce this voluntary commitment. The pledge ended five months ago. As our country faces historic levels of unemployment and economic distress, the FCC has no authority to prevent providers from disconnecting customers who cannot pay their bills.”

AT&T owns HBO, a relationship the senators claimed violates the company’s stated interest in a “free and open internet.” A report from the Verge found that although any company can be part of AT&T’s “sponsored data” system, where companies can pay to excuse users from overage charges, the only streaming services utilizing the system were owned by AT&T.

Obama-era net neutrality legislation made this behavior illegal, but in 2017 the Federal Communications Commission voted to strike down the regulations. Now, HBO Max can evade data caps by paying its parent company.

“The network is the plumbing, and the content is the water. And you’re seeing water and the plumbing kind of coming together,” said Tony Goncalves, an AT&T executive who oversees HBO Max.

Despite the FCC’s  2017 decision, a policy review just a year earlier stated that the agency was concerned about the presentation of “significant risks to consumers and competition in downstream industry sectors because of network operators’ potentially unreasonable discrimination in favor of their own affiliates.”

The letter expressed concern that AT&T’s behavior shows preferential treatment and discourages normal marketplace competitiveness.

“The Trump FCC may have gutted critical net neutrality protections, but AT&T nonetheless has a responsibility to avoid any policies or practices that harm consumers and stifle competition,” it read.

Practically speaking, the senators’ power is limited, but they requested a formal explanation from the company by June 25.

Given the explosive national response to the repeal of net neutrality, the senators may potentially be able to drum up public backlash sufficient to force the company to reconsider.

On Monday, the FCC denied further extensions of time on the agency’s notice seeking to “refresh the record” on the net neutrality proceeding involving public safety, pole attachments, and the Lifeline program for low-income American’ access to telecommunications and broadband.

See Drew Clark’s in-depth analysis of the D.C. Circuit Court’s Decision in Mozilla v. FCC, which highlighted the court’s requirement for an agency remand, “D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC,” October 7, 2019.

But several industry and industry-focused groups were supportive of the agency’s general approach in eliminating net neutrality requirements.

Benton Institute for Broadband and Society Senior Counselor Andy Schwartzman called  “the denial of this extension request [] shameful.”

“[FCC] Chairman [Ajit] Pai and the FCC staff don’t think that the pandemic is enough of an emergency to provide more time for first responders to file comments about how the Commission can ensure that first responders can serve the public in emergencies like pandemics,” Schwartzman said.

Added Rep. Anna Eshoo, D-Calif., “When the Trump FCC repealed net neutrality two years ago, it completely ignored public safety. Santa Clara County firefighters paid a steep price when Verizon throttled their data speeds as they fought the worst fire in California’s history, and the County was helpless to resolve the issue. The County sued the FCC and the D.C. Circuit Court required the FCC to revisit its net neutrality repeal to account for public safety.

“Now, when these same first responders of the Santa Clara County Fire Department are requesting a very reasonable extension to file their comments in the FCC’s order because they are on the front lines in responding to the worst pandemic of our lifetimes, Chairman Pai has ignored their pleas,” said Eshoo.

A group of advocates including Public Knowledge, Access Humboldt, Access Now and the National Hispanic Media Coalition did file comments by the Monday deadline.

“In the comments, we explain how the FCC should reassert its authority over broadband providers so that it can properly fulfill its responsibilities. In particular, as millions of Americans are staying home due to the pandemic, it has become clear that reliable, affordable broadband access is important to allow people to work and attend classes from home — and is even a matter of public safety,” said John Bergmayer, legal director of Public Knowledge.

Industry-supportive groups instead praised the FCC’s effort to address the appeals court’s remand.

The Wireless Internet Service Providers Association said that the FCC’s “restoring internet freedom” order “put an end to stultifying utility-style regulation for WISPs,” said Louis Peraertz, vice president of policy for WISPA:

“It has fostered tremendous growth, investment and innovation, transforming the WISP marketplace,” said Peraertz. “Fiber and other exciting broadband technologies blossom, bringing more power, capacity and coverage to WISP networks and customers. Moreover, [the order] allows WISPs to more flexibly add and then serve their subscribers – a fact which is especially important not only in reducing the rural digital divide, but also in helping our nation successfully combat the COVID-19 pandemic.”

WISPA called for the FCC to grant WISP access to pole attachments at “just and reasonable rates just like providers of ‘telecommunications service’ and cable services,” said Peraertz.

TechFreedom General Counsel Jim Dunstan said that “the FCC need not, and should not, reconsider this fundamental aspect of its 2018 Order,” referring to the regulatory status of broadband services.

“The issues subject to remand are very narrow, and the FCC’s charge is only to better explain the impact of the return to Title I regulation on public safety, pole attachments, and the Lifeline program. That bar is very low and the FCC should have no problem” in explaining that reasonable access for pole attachments are technologically neutral, he said.

Technology Policy Institute President Scott Wallsten also defended the FCC’s deregulatory approach.

“The economics and history of common carriage regulation under the previous, Title II regime tends to be incompatible with rapid innovation and unsustainable over time.” He also argued that “network neutrality is inconsistent with high-performing public safety communications.”

Net neutrality has come to the forefront yet again as the U.S. Court of Appeals for the D.C. Circuit repealed three elements of the Federal Communications Commission’s proposal to treat broadband as an internet service.

“But in a dissent on a new case, released Monday, Thomas wrote that he got Brand X wrong,” writes Brodkin.

Referring to the National Cable & Telecommunications Association v. Brand X Internet Services, Thomas stated, “Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations.”

Clearview AI hacks raises concerns about anonymity

Clearview AI, the controversial facial recognition company lead by Hoan Ton-That, was hacked.

Kashmir Hill reported on Clearview AI for the New York Times last month in an article that brought to light the extensive database the company has that accesses billions of photos from online resources, like social media.

Jordan Valinsky reported for CNN Business that Clearview AI “said it lost its entire client list to hackers.” A client list that includes “police forces, law enforcement agencies and banks,” writes Valinsky.

Sen. Edward Markey, D-Mass., sent a letter to Ton-That with concerns that his Clearview AI “could eliminate public anonymity in the United States.”

Following the news of the data breach, Markey released a statement yesterday, saying “Clearview’s statement that security is its ‘top priority’ would be laughable if the company’s failure to safeguard its information wasn’t so disturbing and threatening to the public’s privacy,” said Markey.

“This is a company whose entire business model relies on collecting incredibly sensitive and personal information, and this breach is yet another sign that the potential benefits of Clearview’s technology do not outweigh the grave privacy risks it poses,” Markey stated.

New groups announce support for Online Privacy Act

In a house press release yesterday, an additional 15 groups announced support for the Online Privacy Act.

“The Online Privacy Act is sweeping legislation that creates user rights, places obligations on companies to protect users’ data, establishes a new federal agency to enforce privacy protections, and strengthens enforcement of privacy law violations.”

H.R. 4978 was created by Rep. Anna Eshoo, D-Calif., and Rep. Zoe Lofgren, D-Calif.

Support was garnered from groups including the National Hispanic Media Coalition, MediaJustice, Free Press Action, Public Knowledge, and several professors.

“The theft and abuse of personal data is unacceptable, and it’s well-past time to put an end to unfair business practices that deny users control over their own data. Our legislation ensures that every Americans’ right to their personal data is protected, and that the government provides tough but fair oversight,” said Eshoo and Lofgren.

The FCC’s 2017 initiative changed the classification of broadband internet service to a Title I “information service” rather than a Title II telecommunication service subject to common carrier regulation. The move considerably loosened regulations on broadband providers that had been imposed by the FCC under the Obama administration in February 2015.

But in upholding the bulk of the regulatory rollback, the D.C. Circuit required the agency to revisit its rationale for rules governing public safety, pole attachments, and the FCC’s Lifeline program for low-income individuals.

See Broadband Breakfast’s analysis of the D.C. Circuit Court opinion, at “D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC“

The agency’s Wireline Competition Bureau sent a public notice addressing the three issues. As regards public safety, the bureau asked, “Do broadband providers have policies in place that facilitate or prioritize public safety communications?”

While the Commission said “permitting paid prioritization arrangements would increase network innovation,” the bureau said it wanted to know the benefits and potential harms this has on public safety communication.

Second, the bureau raised the issue of pole attachments in states subject to federal regulation, i.e. those that do not reverse-preempt the FCC. Under pole attachment laws, states may create their own regulations, or defer to the FCC for national rules. About half of states make their own rules.

Third, the bureau asked how deregulated broadband will effect the FCC’s Lifeline program subsidizing broadband for low-income Americans.

Federal Communication Commissioner Jessica Rosenworcel said that the American people “should raise their voices and let Washington know how important an open internet is for every piece of our civic and commercial lives.”

“The agency wrongfully gave broadband providers the power to block websites, throttle services, and censor online content,” said Rosenworcel,

Free Press Research Director S. Derek Turner called the Restoring Internet Freedom Order a “mess.”

“As the court has indicated, it put broadband access, affordability and even public safety at risk,” said Turner.

“That the court sent these critical issues back to the FCC for further review demonstrates that Chairman Pai’s interpretation of his agency’s legal authority rests on very unstable ground,” said Turner.

Turner characterized the Obama’s 2015 net neutrality initiative making broadband providers common carriers as a form of “light regulation.” The approach taken by then-FCC Chairman Tom Wheeler avoided “the pending legal chaos that Chairman Pai has created.”

Kevin Taglang with the Benton Institute for Broadband and Society said that the deadline for open comments was March 30, 2020. Reply comments are due on April 29.

Policies on issues like micromobility and scooters obviously need to be handled at the local level, said Tech:NYC Executive Director Julie Samuels.

Brooks Rainwater, director of the Center for City Solutions, said cities have even addressed facial recognition policy, a sphere that he said the federal government should have already legislated on. Rainwater expressed frustration with national efforts that preempt the activities of states and cities.

At the same time, Electronic Frontier Foundation Senior Legislative Counsel Ernesto Falcón injected his “frustration” against congressional inaction. Cities have passed their own ordinances as a natural reaction to the issues that broader government has failed to address, he said.

Falcón said 90 percent of Americans think they have “no control” over what happens to their data on the internet, and because of this, cities are the level at which consumers feel that their needs are most heard. “Federal conversations aren’t really tied to what the daily person worries about,” said Samuels.

Rick Cimerman, vice president of state affairs of the cable association NCTA, pushed back against the assertions that cities are the right place to decide broadband policy.

Cities should not be “messing” with federal “electrons that are flowing through the air,” he said, claiming that city measures on privacy are “a step too far.”

He qualified his response by ceding that scooters are a good example of activities for which cities should be responsible. He found recent privacy legislation passed by the state of Washington’s House of Representatives agreeable, although he disagreed with edits made to that measure in the Washington State Senate.

Rainwater insisted that cities should “establish a floor” and not necessarily a ceiling when it comes to internet privacy law.

He also challenged Cimmerman’s views on net neutrality by referencing Verizon’s action in throttled California firefighters’ data communications in the midst of a wildfire. Cimmerman said Verizon’s actions were not an example of broadband throttling, but rather a misunderstanding of contract.

Debate Shifts to Congress and the States

The U.S. Court of Appeals for the District of Columbia, in Tuesday’s decision of Mozilla Corporation v. Federal Communications Corporation, handed the FCC a victory on the technically complicated and politically divisive issue of network neutrality.

Under Chairman Ajit Pai, in December 2017 the agency repealed regulations that had classified broadband internet access service as a form of “telecommunications” and hence subject to certain common carrier obligations. Instead, the Republican-led FCC changed broadband into an “information service,” with much less onerous regulations. This re-classification was largely upheld by the court.

However, that victory was tempered by the court’s requirement that the FCC make three specific changes to decision they took in 2017. The changes are on public safety, pole attachments and the Lifeline program. Moreover, by a two-to-one margin, the court decided to vacate FCC’s having purported to preempt “any state or local requirements that are inconsistent with [the FCC’s] de-regulatory approach.”

The decision by Judges Patricia Millett and Robert Wilkins and Senior Judge Stephen Williams (the dissenter on the preemption issue) will not put to rest the controversy associated with net neutrality.

Now, the matter is a four-ring circus:

1. Future revisions to be made by the FCC;
2. the appeals court’s implied invitation for Congress to clarify what the Telecommunications Act of 1996 had left ambiguous;
3. states passing their own versions of net neutrality; and
4. the possibility of an en banc rehearing by the whole circuit, or an appeal to the Supreme Court.

Basis for the Decision

The bulk of the court’s decision is per curiam, meaning that it is unsigned, and reflects the will of the court rather than that of any particular judge. Of the 186-page decision, 146 pages are in the “per curiam” portion, followed by a significant concurring opinion by Judge Millett, a nominal concurring opinion by Judge Wilkins, and a substantive dissent – from the portion of the decision dealing with preemption – by Judge Williams.

The voice in which the per curiam decision was written was one of duty: We as a court may not like what the FCC did in repealing net neutrality rules, but as an inferior court we are bound by the principles of Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984) (“Chevron”) – which governs federal agency interpretation of ambiguous statutes – as well as National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”) – the last substantive decision by the U.S. Supreme Court on the regulatory classification of “information services.”

In Brand X, the Supreme Court majority upheld the decision of a Republican-controlled FCC to re-classify cable broadband service as an “information service.” After that 2005 victory, the agency also reclassified wireline and wireless broadband in the same manner.

Ping-pong continued as a subsequent Democratic-controlled FCC attempted to implement net neutrality rules several times. The first attempt kept broadband internet access as a form of “information service,” but regulated blocking and throttling of internet traffic. It was rebuffed by the D.C. Circuit. A second attempt came in 2014 to fundamentally re-classify broadband as a “telecommunications service” with some attendant common carrier obligations under Title II of the Communications Act. However, the FCC did forbear at that time from applying many of those regulations.

The rules decided in 2014 were repealed by the Pai FCC in 2017, effectively returning the classification of broadband to “no regulation.” That “no regulation” status quo was the state of play when the net neutrality legal and political fight began in earnest more than a decade ago. The Pai FCC has settled upon including a small additional requirement that broadband providers disclose terms and conditions of service.

In 2016, both a three-judge panel and, later, the majority of the entire D.C. Circuit Court upheld the Democratic FCC’s classification of broadband as a Title II “telecommunication service.” Now, this new three-judge panel unanimously agreed that it was perfectly appropriate for the FCC to change its mind and reclassify broadband as an “information service” under the less-regulatory Title I.

This was so, the per curiam decision reasoned, because Chevron required judges to defer to an agency’s construction of an ambiguous provision in a statute that it administers, if that construction is reasonable.

In the concurring opinion authored by Judge Millett, she said she “join[s] the Court’s opinion in full, but not without substantial reservation.” The result was “compel[led]” by Brand X, but she pointedly added that “I am deeply concerned that the result is unhinged from the realities of modern broadband service.” Her concurring opinion emphasizes that – given the underlying ambiguity of the Telecom Act – it was equally permissible for the FCC to “regulate” broadband as an “information service” or as a “telecommunications service.”

Important Regulatory Issues Raised About Pole Attachment and Lifeline

Classification decisions have an enormous impact upon providers of communications services, so Tuesday’s decision represented a victory for internet service providers and their allies at the FCC.

But while the court accepted the FCC’s reclassification as reasonable on most counts, there were three specific instances where the court ruled that the agency had not complied with the Administrative Procedure Act. Specially, the APA requires that agency regulations not be “arbitrary and capricious.”

The first of these rebuffs came on the issue of public safety. Most of the court’s discussion on this centered on the widely-covered controversy over Verizon capping the data limits of Santa Clara County firefighters’ broadband plan when they were battling wildfires in the summer of 2018.

Although not vacating the order on these grounds, the court said that the FCC’s “disregard of its duty to analyze the impact of the Order on public safety renders its decision arbitrary and capricious in that part and warrants a remand with direction to address the issues raised.”

Although that strong language will require the FCC to go back and bolster its rationale for the rule-change vis-à-vis public safety, it doesn’t quite cut to the heart of the regulatory conflict in the same way as did the court’s objections over pole attachments and the Lifeline program.

Specifically, revising pole attachments rules will likely pose a challenge to the FCC’s re-classification because the federal regime, mirrored by the states, requires access “to a pole, duct, conduit, or right-of-way owned or controlled by a utility.” Federal law governs this area of law under Title II, unless states “reverse-preempt” the statute, as permitted by the Communications Act, and establish their own pole-attachment regime. As the court noted:

• But this whole regulatory scheme applies only to cable television systems and “telecommunications service[s]”— categories to which, under the 2018 Order, broadband no longer belongs. See 47 U.S.C. § 224(a)(4) (defining “pole attachment” as “any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility”) (emphasis added); id. § 224(f)(1) (“A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of- way owned or controlled by it.”) (emphasis added). Section 224’s regulation of pole attachments simply does not speak to information services. Which means that Section 224 no longer speaks to broadband. Per curiam, at 106.

Similarly, with regard to Lifeline, the federal system of subsidizing low-income consumers’ access to broadband is governed by provisions in Title II. Lifeline originally only subsidized telephone service. This was changed in 2016, when the FCC extended the program to cover broadband internet access. The court noted:

• In the [2016] Lifeline Order, the Commission repeatedly referenced Congress’s overriding command to provide “telecommunication services to consumers.” (emphasis added to Lifeline Order). That made sense, given that Congress had tethered Lifeline eligibility to common-carrier status. To receive Lifeline support under the Act, an entity must be designated as an eligible telecommunications carrier—a category that extends to common carriers regulated under Title II. See 47 U.S.C. §§ 254(e), 214(e). This congressional understanding pervades the statute…. As a result, broadband’s eligibility for Lifeline subsidies turns on its common-carrier status…. As a matter of plain statutory text, the Order’s reclassification of broadband—the decision to strip it of Title II common-carrier status—facially disqualifies broadband from inclusion in the Lifeline Program. Per curiam, at 111.

In other words, the FCC will need to fundamentally reconfigure its rules governing pole attachments and Lifeline. The benefits associated with these rights – access to others’ poles and conducts, or subsidies pursuant to eligible telecommunications carrier status – are deeply enmeshed with the provisions that govern “telecommunications” either under federal law or under a state’s telecommunications regulations. Now, the FCC would need much more creative thinking in order to retrofit these benefits to broadband providers who are now no longer bound by the burdens of offering “telecommunications services.”

The Uncertain Status of State Net Neutrality Laws under Mozilla v. FCC

This final issue – the subject of Judge Williams’ dissent – has captured the most reporting and disputes about the court’s Mozilla v. FCC decision since it was issued earlier this week. Are states forbidden, or will states be forbidden, from enacting their own variations of net neutrality?

The simplest answer is that the FCC’s attempt to flex its muscles and assert its preemptive predominance over “any state or local requirements that are inconsistent” with its order has now been officially struck down. Therefore, any state requirement that imposes net neutrality regulations is presumptively valid. But when further litigation undoubtedly arises, the issue of so-called “conflict preemption” will be foursquare in the analysis. The reviewing court would have to consider whether that state’s law “stands as an obstacle to the accomplishment and execution of the [federal law’s] full purpose and objectives.” Per curiam, at 143, note 4.

Under the U.S. Constitution’s supremacy clause in Article VI, “the laws of the United States… shall be the supreme law of the land” to which state judges are bound. The heart of the controversy between the majority and the dissent is whether this preemptive supremacy extends to the actions of an agency that are not explicitly authorized by Congress.

“It is Congress to which the Constitution assigns the power to set the metes and bounds of agency authority, especially when agency authority would otherwise tramp on the power of States to act within their own borders,” according to the per curiam opinion, at 139. Rebuts Judge Williams: “Supreme Court decisions make clear that a federal agency’s authority to preempt state law need not be expressly granted.” Williams, at 3-4 (emphasis in original).

The majority considers and rejects the two arguments that the FCC made in justifying preemption. First is the “impossibility exception,” which deals with the impossibility of determining whether particular broadband traffic was interstate or intrastate. Second is what the FCC characterized as the federal policy of non-regulation for information services.

Judge Williams calls this “impossibility exception” a “a well-established ground of FCC preemption,” and that it plainly applies

• [W]hen (1) the matter to be regulated has both interstate and intrastate aspects . . . ; (2) FCC preemption is necessary to protect a valid federal regulatory objective . . . ; and (3) state regulation would ‘negate the exercise by the FCC of its own lawful authority’ because regulation of the interstate aspects of the matter cannot be ‘unbundled’ from regulation of the intrastate aspects.” Williams, at 1-2, citing Public Service Comm’n of Maryland v. FCC, 909 F.2d 1510 (D.C. Cir. 1990).

The majority diminishes the importance of this impossibility exception, saying that it was born out of a footnote in an earlier Supreme Court case, Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986), that denied the FCC the authority to preempt a state law without specific congressionally delegated authority. “The ‘impossibility exception’ does not create preemption authority out of thin air.” Per curiam, at 129.

The majority’s second concern, over the FCC’s policy of non-regulation, gets at the logical conundrum between the two sides. Because the FCC has decided to limit its regulatory authority over broadband by making it an “information service,” the majority says it cannot bootstrap “ancillary authority” on the back of a de-regulatory policy that it – rather than Congress – is promulgating. In addition to Louisiana PSC, the majority repeatedly cites American Library Association for the proposition that the agency “literally has no power to act unless and until Congress confers power upon it.” ALA v. FCC, 406 F.3d 689, 998 (D.C. Cir. 2005).

Thus the majority takes the view that unless and until the FCC can make a successful “conflict preemption” challenge that a state law is in fact an “obstacle” to the full purpose and objective of a federal law, “then presumably the two regulations can co-exist as the Federal Communications Act envisions.” Per curiam, at 143. That system is one of co-existing and dual state and federal responsibilities: Federal regulation being responsible for interstate communication, and state regulation being responsible for intrastate communication.

But, says Judge Williams, this simply means that the federal rules will inevitably subject interstate commerce to the will of the state with the most regulatory rules, at least in the short term:

• Just as an ISP cannot “comply with state or local rules for intrastate communications without applying the same rules to interstate communications,” it seems safe to say that an ISP bound to apply the rules of California to any of its service will also need—because of the impossibility of “distinguish[ing] between intrastate and interstate communications over the Internet,”—to apply those heavy-handed rules to all its service. Williams, at 4 (internal quotations from the FCC order).

Judge Williams later writes that this process is likely to take years: “The majority hints that through case-by-case litigation of conflict preemption, the Commission might be able over the years to obtain relief against some state impositions of regulation inconsistent with the Commission’s de-regulatory scheme.” Id., at 21.

Because state rules on net neutrality are not clearly and immediately preempted, it seems likely that the controversy of the FCC’s reclassification of broadband will now simultaneously play out in administrative, state-level, congressional and federal judicial forums.

About the author:

Drew Clark, the Editor and Publisher of BroadbandBreakfast.com, is a nationally-respected telecommunications attorney at The CommLaw Group. He has closely tracked the trends in and mechanics of digital infrastructure for 20 years, and has helped fiber-based and fixed wireless providers navigate coverage, identify markets, broker infrastructure, and operate in the public right of way. If you are interested in tracking legislative, judicial or regulatory developments impacting the regulation and regulatory status of broadband services in Congress and the states, contact Drew Clark at apc@commlawgroup.com.

However, in a bit of a split decision, the court said that the agency did not have authority to preemptively ban states from passing their own versions of net neutrality legislation.

The panel largely rejected a challenge to new rules which reclassify broadband internet as an information service, rather than a common carrier akin to telephone service.

The ruling appeared to put an end to efforts by public interest advocacy groups and some internet companies to overturn the reclassification of broadband internet service.

In December 2017, FCC Chairman Ajit Pai led the Republican commissioners to overturn the agency’s February 2015 decision to prohibit broadband providers from blocking or throttling particularl types of internet traffic.

“We hold that classifying broadband Internet access as an “information service” based on the functionalities of DNS and caching is “‘a reasonable policy choice for the [FCC] to make,’” the court wrote in a unanimous opinion. The decision relied heavily on case law – so-called Chevron deference after a Supreme Court case by that name from the 1980s — requiring courts to defer to agencies’ interpretations of ambiguous statutes.

The plaintiffs’ objections to the reclassification, the court wrote, were “unconvincing for the most part.”

In leaving room for states to enact their own net neutrality laws — by finding that the agency lacked the authority to bar states from enacting rules more stringent than the FCC’s requirements — some aspects of the decision cheered advocates of net neutrality. The court also required the FCC to more fully consider the needs of public safety users.

In a statement, TechFreedom President Berin Szoka applauded the court’s decision, but noted that it leaves room for a future Democratic-majority FCC to reinstate the Obama-era rules and shift the long-running battle over network neutrality to state legislatures and case-by-case court battles.

“Today’s decision vindicates the RIFO, but Chevron deference to the Republican FCC’s interpretation will likely be tomorrow’s Chevron deference to the next Democratic FCC’s interpretation,” Szoka said. “So this issue will remain a political football for the foreseeable future, unless and until Congress finally writes into statute the open Internet principles that virtually all parties have agreed on since 2004.”

Internet Innovation Alliance Co-Chairs Rick Boucher, Bruce Mehlman, and Kim Keenan also lauded the ruling, which they said “deserves applause from everyone who wants to see an expansion of innovation, competition and investment in the internet ecosystem.”

“But ruling that the FCC can’t block state laws and thus allowing rules that differ among all 50 states could spell disaster for advancement of the internet, as web services are offered on a national basis, and many would be disrupted by a multiplicity of diverse and contradictory state net neutrality requirements,” they added.

“Unless Congress codifies nationwide open internet rules, including the designation of broadband as an information service, we will very likely see continuation of the ping-pong at the FCC between classifications of broadband as an information service and as a telecommunications service.”

Also speaking out in favor of the decision was US Telecom CEO Jonathan Spalter, who said in a statement that the court “got it right and affirmed what anyone who has been paying attention to Washington’s net neutrality saga knows to be true: the internet is open, ISPs are investing to bring internet users the content they want, and we remain absolutely opposed to anti-consumer practices like blocking, throttling and anti-competitive paid-prioritization.”

Sen. Ed Markey, D-Mass., a longtime network neutrality proponent, said in a statement that the court’s decision “leaves the future of the free and open internet in question.”

“When I attended the net neutrality court hearing earlier this year, I heard the FCC and broadband industry use tortured logic to defend the repeal of net neutrality and undermine strong rules for an open internet,” Markey said. “Sadly, today’s court opinion doesn’t reflect the clear reality that Americans rely on the internet the way they rely on electricity or telephone service.

But at the FCC, the court’s decision providing something for everyone.

In dueling press statements, both Republicans and Democrats at the FCC claimed victory.

Said the Republican Pai, ignoring the criticisms of the ruling made by the three judge panel:

“Today’s decision is a victory for consumers, broadband deployment, and the free and open Internet.  The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior Administration.  The court also upheld our robust transparency rule so that consumers can be fully informed about their online options.  Since we adopted the Restoring Internet Freedom Order, consumers have seen 40 percent faster speeds and millions more Americans have gained access to the Internet.  A free and open Internet is what we have today and what we’ll continue to have moving forward.  We look forward to addressing on remand the narrow issues that the court identified.”

Commissioner Geoffrey Starks, a Democrat highlighted the fact that states remain free to pass net neutrality legislation:

“Above all else, today’s decision breathes new life into the fight for an open internet.  It confirms that states can continue to step into the void left by this FCC.  To that end, it is a validation of those states that have already sought to protect consumers, and a challenge to those that haven’t yet acted to think hard about how to protect their citizens.  More pointedly, the decision affirms that the FCC ignored key aspects of its mission with regard to public safety and broadband deployment.  And the decision admonishes this Commission for its failure to consider the impact of its action in this context on Lifeline, a critical program that makes broadband more affordable for low-income consumers.”

Although the government plays an important role, the buildout of 5G will be primarily led by the private sector, said Stephanie Hall, director of innovation policy at the National Association of Manufacturers.

“The private sector is standing by and they’re ready to make the investment in the infrastructure,” she said. “The role that the federal government needs to play is to remove barriers to the buildout of that infrastructure.”

Panelists praised the Federal Communications Commission’s controversial decision to futher limit municipalities’ role in regulating what small cell and 5G towers are placed within their rights-of-way through the September 2018 infrastructure order.

The government should also ensure that net neutrality rules are not reinstated, said Fred Campbell, former Chief of the Wireless Telecommunications Bureau at the FCC. Burdening investment with additional regulations on the technology would create a disincentive for companies pursuing 5G development.

Former Wireless Technology Association Director Peter Rysavy agreed, pointing out that net neutrality regulations doesn’t make sense in a 5G world. Urgent messages need to have a higher priority, and it’s possible to do this in way that is fair and doesn’t undermine other applications.

For example, an urgent signal going to an autonomous car about the presence of a pedestrian should be prioritized over a person streaming a YouTube video, especially since the video streaming wouldn’t even be affected by the deprioritization.

The continued development of technology will force policy debates—like the one over net neutrality—to move in more thoughtful and nuanced directions, said Campbell.

5G is “significantly different” from previous cellular technologies “because it vastly increases the scope of applications and use cases that cellular technology can address,” said Rysavy.

It also has the ability to operate in a far greater range of spectrum. While most cellular technology today only runs up to about 2.5 gigahertz, said Rysavy, 5G currently supports up to 50 gigahertz and there are ongoing efforts to potentially expand this figure to more than 100.

Higher bands have much greater bandwidth available and using wider radio channels will lead to multiple gigabit per second speeds. These factors mean that 5G will play a much greater role in the economy than previous cellular technologies, according to Rysavy.

The combination of high speed and low latency will unlock a variety of new use cases and transform the entire manufacturing ecosystem, Hall said. 5G development will affect device makers and network equipment manufacturers as well as revolutionizing other industries by catalyzing innovations like autonomous vehicles and smart agriculture.

5G could also play a significant part in closing the digital divide. Wireless connections are inherently much less expensive than running wire, cable, or fiber to remote rural locations, and with line-of-sight propagation and directional antennas, a signal could be run for several miles.

Harnessing mid-band frequencies for 5G deployment would provide enough bandwidth for high throughput connections with a low enough frequency to deploy cells that aren’t too dense, resulting in an “excellent solution for rural broadband,” said Rysavy.

However, there needs to be more conversation about how 5G will actually be deployed to rural areas, said Campbell.

(Webcast screenshot of panel moderator Barry Umansky, Digital Policy Institute Senior Fellow.)

Sens. Ed Markey, D-Mass., Ron Wyden, D-Ore., and Maria Cantwell, D-Wash., each took to the Senate floor on Tuesday to demand that McConnell, R-Ky., bring the Save the Internet Act to the floor for a vote. The Markey-authored legislation would turn back the regulatory clock to June 11, 2018, just as FCC Chairman Ajit Pai’s repeal of the Obama-era Open Internet regulations was taking effect.

“I rise today in defense of net neutrality. In April, the House of Representatives took an important step in passing the Save the Internet Act legislation that would…restore net neutrality protections,” said Markey, who has been a strong proponent of rules to prevent broadband providers from blocking or throttling customers’ internet traffic since his days representing Massachusetts in the House of Representatives.

Markey noted that the Senate passed a so-called “resolution of disapproval” last year to use the Congressional Review Act to overturn the FCC’s repeal of the Obama-era rules, but added that he was offering up the Save the Internet Act because the CRA is no longer an option.

“Unfortunately, our Republican colleague are failing to listen to the voices of their constituents and plan to block the vote from happening,” he said.

“Let’s be clear. Net Neutrality is just another way in which the Republican Party refuses to side with the ordinary people in our country.”

Wyden echoes the high stakes involving in politicizing net neutrality

Wyden, who has frequently collaborated with Markey on network neutrality legislation, rose when his colleague had finished to echo the Massachusetts senator’s call for action and explain the stakes.

“Net neutrality — the free and open internet — says that once you have access to the internet, you get to go where you want, when you want and how you want,” Wyden said before noting that both he and Markey have been pushing for strong network neutrality protections for more than ten years.

Responding to critics of his bill who’ve said that the current FCC rules have not resulted in the far-reaching consequences predicted by network neutrality proponents, Wyden explained that the changes he and others fear are often slow in coming.

“Here’s the reality — these changes that hurt consumers don’t come all at once, and that’s for a reason. Big cable companies count on making them in steady, creeping ways that go unnoticed — it’s death by a thousand inconveniences,” he said.

The Oregon senator offered as an example the recent proliferation of “unlimited” data plans “that totally throw away the definition of the word ‘unlimited.'”

“To understand the complicated limits on internet access in these newfangled “unlimited” plans, you practically need a graduate degree in big-cable legal jargon,” Wyden said. “Consumers might be forced to swallow hard and accept it, but that doesn’t make it acceptable.”

Wyden also noted that the rise of mega-mergers between content providers and broadband network operators — like the recent merger between Time-Warner and AT&T — can threaten consumers by eroding competition, reducing the number of available choices, and giving rise to anti-competitive bundling deals in which network operators don’t charge for access to one preferred content provider but do so for all others.

“That’s a bad deal for consumers who ought to be able to access what they want and when they want. It’s also a nightmare for startup companies who won’t be able to afford special treatment and won’t be able to compete with the big guys,” he said.

Cantwell says that net neutrality rules are needed to protect jobs from internet companies

Cantwell, D-Wash., noted that strong network neutrality rules would protect the 15,000 internet companies which provide 377,000 jobs and make up one-fifth of the economy in her state.

“We know we have to fight back against companies who gouge consumers or suppress competition. And being one year since the FCC decided to turn back protections for the internet, we’re here today because we know that we’ve already seen the inklings of what is more to come,” she said before adding that broadband provides are already “doing things that are slowing down or charging consumers more.”

Network neutrality rules, Cantwell said, drew comments from more than 20,000 consumers who told the FCC to keep strong protections in place.

“They do not want to see large-scale companies overcharging or gouging them,” she said.
Cantwell argued that strong network neutrality protections are good for the economy because they allow the internet to be a “great equalizer” that is “helping people from different backgrounds participate in our economy.”

“But innovative businesses in every small town and every city need to have an internet that is going to give them access to create jobs and move their local economies forward,” she added, warning that consolidation threatened the internet’s record as an economic engine.

“Today, in the United States, three cable companies – just three cable companies – have control of internet access for 70 percent of Americans. And 80 percent of rural Americans still only have one choice for high-speed broadband in their homes and businesses,” she said.

“So we’re not going to get likely competition where the consumer can just say ‘You’re artificially slowing me down. You’re charging me too much. I’m just going to go to the competition.’ That’s not likely to happen.”

“That is why we need a strong FCC approach to protecting an open internet and saying that they shouldn’t block, they shouldn’t throttle, they shouldn’t manipulate internet access. And without these protections, big cable can move faster in charging more,” Cantwell said.

“I ask my colleagues on the other side of the aisle to say that it’s time to hold these companies accountable and put consumers ahead of these big cable profits.”

(Photo of Sen. Ed Markey on the Senate floor on Tuesday.)

Federal Communications Commission Chairman Ajit Pai said this is a result of “reducing unnecessary regulatory burdens” and updating rules “to match the modern communications marketplace.”

“We made it easier for broadband providers to transition from the copper networks of yesterday to the fiber networks of tomorrow,” said Pai. “We modernized our business data services regulations. We eliminated utility-style rules from the 1930s. And we made it easier to deploy wireless infrastructure by getting rid of unnecessary regulatory barriers at the federal, state, and local level.”

The data from US Telecom appears to show that capital investment decreased by $4 billion between 2014 and 2016, but increased by $6 billion between 2016 and 2018. The estimate for the total amount U.S. broadband providers invested in 2018 is $75 billion.

Many factors affect investment, such as technological developments and broader economic conditions. Pai used the release to highlight his point that the trend “reaffirms that our policies are working.”

US Telecom, which favors the chairman’s pro-deregulatory agenda, agreed. “Top line broadband capex data strongly suggest that the current pro-investment, pro-innovation, and pro-consumer policy environment is working.”

Other positive outcomes from 2018 include a record amount of new fiber deployment and quadrupled small cell deployment. Additionally, average broadband speeds increased “substantially,” prompting Pai to claim that “the digital divide is closing.”

US Telecom’s release ascribed some of the growth in investment to the growth of 5G wireless networks, which will likely play an increasingly large role in the future.

(Graphic from US Telecom.)