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Net Neutrality

Democrats Seek to Codify Net Neutrality as Fifth FCC Commissioner Hangs

Some say the bill would add heavy regulation that will harm investments and consumers.

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1 year ago

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Photo of Senator Edward Markey (D-MA) during virtual press conference on Thursday

WASHINGTON, August 1, 2022 – Democratic Senators introduced Thursday a bill that would enshrine into law the concept of net neutrality, which would prevent internet service providers from tinkering with internet traffic, in a move that comes ahead of midterm elections that could alter whether the Federal Communications Commission gets its Democratic fifth commissioner to take unilateral action on the matter.

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.

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Managing Editor Ahmad Hathout has spent the last half-decade reporting on the Canadian telecommunications and media industries for leading publications. He started the scoop-driven news site downup.io to make Canadian telecom news more accessible and digestible. Follow him on Twitter @ackmet.

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Expert Opinion

Ted Hearn: A Supreme Court Case About Fish Could Harpoon The FCC

Opponents of the Chevron Doctrine aver that judicial deference has gone too far.

Published

15 hours ago

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January 15, 2024

By

The author of this Ted Hearn, Editor of Policyband

WASHINGTON, January 15, 2024 – On Wednesday, the Supreme Court will hear a case about federal regulation of the fishing industry.

Anyone who thinks the case is about fish is going to need a bigger boat.

In reality, this whale of a case could harpoon the Federal Communications Commission, which is clearly at risk of seeing its newly approved, highly controversial digital discrimination rules aimed at broadband Internet Service Providers get fed to the sharks.

Since 1984, the Supreme Court’s Chevron Doctrine has required lower courts to defer to an agency like the FCC when reasonably interpreting vague legislative language passed by Congress. The doctrine was established in Chevron U.S.A. v. Natural Resources Defense Council.

Opponents of the Chevron Doctrine aver that judicial deference has gone too far, leading to outsized accretions of bureaucratic power that threaten the nation’s constitutional order sustained by the separation of powers.

“Chevron deference has become a central pillar of the modern administrative state,” said Stanford Law School Professor Michael W. McConnell. “Although Chevron appeared routine when it came out, it has become the most important doctrine in administrative law.”

The FCC under Democratic Chair Jessica Rosenworcel has a lot riding on the high court’s ruling in Loper Bright Enterprises v. Raimondo, which is ostensibly about the regulation of fisheries under the Magnuson-Stevens Act of 1976. A decision is not expected for several months after Wednesday’s oral arguments.

In November, the FCC adopted Internet digital discrimination rules as required by Congress in section 60506 of the Infrastructure Investment and Jobs Act of 2021.

The FCC rules included a “disparate impact” standard imported from civil rights law that can hold ISPs liable for unintentional acts of discrimination across a broad range of activities – from the price and quality of Internet service to late fees, equipment rentals, and the use of customer credit and account history.

Litigation on the basis that the FCC developed rules far broader than Congress intended is inevitable.

“The FCC’s regulatory overreach will prove impossible to administer and impossible to comply with,” said Michael Powell, President & CEO of the NCTA – The Internet & Television Association, in a Nov. 15, 2023 statement.

The Supreme Court likely has at least five justices who want to dismantle the Chevron Doctrine entirely. The Court majority that would do so is likely the same one that in 2022 barred an agency like the FCC from adopting rules of vast economic and political significance without explicit authority from Congress.

The Chevron Doctrine has its defenders, including the Environmental Defense Fund and other green groups that say opponents of judicial deference have been exaggerating the harms.

“This campaign is marked by the kind of sloganeering, argument by anecdote, and sacrifice of empirical rigor that are all too familiar in hardball politics but out of place in legal argumentation,” the EDF said in its amicus brief filed with the Supreme Court last September. “Like any shrewd campaigners, petitioners and their supporters seek to ‘drive up the negatives’ by misstating what Chevron instructs.”

Last June, an article on the Natural Resources Defense Council’s website disputed ideas that the Chevron Doctrine gave an agency like the FCC “a rubber stamp” to adopt onerous rule and regulations. Ironically, the NRDC supports the maintenance of the Chevron Doctrine, even though it was the losing party in the 1984 case.

“…As noted by the Brennan Center for Justice, a nonpartisan law and policy institute, federal agencies face legal challenges to their rules all the time – and only prevail in about 70% these challenges, even with the Chevron Doctrine on their side. In other words, their powers are far from unchecked,” the article said.

A problem with the NRDC article’s analysis is that it gave equal weight to each case in the sample. Broadband ISPs have much more at stake in their likely legal challenge to the FCC’s digital discrimination rules than in their potential case taking on new FCC rules requiring Internet providers to display ‘Broadband Nutrition Labels’ at the point of sale.

In the end, by scuttling the Chevron Doctrine, the Supreme Court will not only reel in a big fish like the administrative state, it will also send Congress a message about the need to craft clear laws.

“Congress will face more pressure to clearly articulate agency authority and delegate fewer details to administrative agencies,” the Brownstein Hyatt law firm said in a client alert last May.

Ted Hearn is the Editor of Policyband, a new website dedicated to comprehensive coverage of the broadband communications market. This piece is was published on Policyband on January 15, 2024, and is reprinted with permission.

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.

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FCC

FCC Rules Face Litigation Risk in 2024, Note Journalists

A potentially active Supreme Court and its ‘major questions’ doctrine could pose challenges for the FCC.

Published

2 weeks ago

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January 4, 2024

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WASHINGTON, January 4, 2024 — A panel of top telecom journalists on Wednesday warned that major FCC policy moves in 2023 face significant litigation threats in the year ahead.

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

Ted Hearn is the Editor and Publisher of Policyband, a new website dedicated to comprehensive coverage of the broadband communications market. A former communications executive and reporter for newsletters and trade journals, Hearn has decades of experience with traditional video and broadband industry trends, regulatory developments, technology advancements, and market dynamics.

Howard Buskirk is Executive Senior Editor and joined Warren Communications News in 2004, after covering Capitol Hill for Telecommunications Reports. He has covered Washington since 1993 and was formerly executive editor at Energy Business Watch, editor at Gas Daily and managing editor at Natural Gas Week. Previous to that, he was a staff reporter for the Atlanta Journal-Constitution and the Greenville News.

Sean Gonsalves is Senior Reporter, Editor and Communications Team Lead, Institute for Local Self Reliance’s Community Broadband Networks Initiative. He is a longtime former reporter, columnist, and news editor with the Cape Cod Times. He is also a former nationally syndicated columnist in 22 newspapers, including the Oakland Tribune, Kansas City Star and Seattle Post-Intelligencer. His work has also appeared in the Boston Globe, USA Today, the Washington Post and the International Herald-Tribune. An award-winning newspaper reporter and columnist, Sean also has extensive experience in both television and radio.

Lynn Stanton is Senior Editor for Wolters Kluwer’s TR Daily, has been covering telecommunications, broadband, and Internet policy for nearly three decades. She has also reported on pharmaceutical marketing compliance and has worked as a copyeditor for a wide range of publications. She holds a bachelor’s degree in government and politics from the University of Maryland and a master’s degree in political theory from the University of Virginia.

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.

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12 Days of Broadband

12 Days of Broadband: Net Neutrality Is the Issue That Never Dies

It’s been 11 years since Verizon filed arguments against the FCC in the D.C. Circuit Court of Appeals.

Published

2 weeks ago

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January 2, 2024

By

Illustration by DALL-E

January 2, 2024 – The net neutrality debate was alive and well in 2023, more than 11 years since Verizon filed arguments against the Federal Communications Commission before the D.C. Circuit Court of Appeals in July 2012 in a partisan issue that has dominated telecom politics for more than a decade.

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.

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

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