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Net Neutrality

Ninth Circuit Court of Appeals Denies Efforts to Eliminate California Net Neutrality Law

A coalition of telecommunication trade associations were unable to sway the court.

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2 years ago

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Photo of FCC Chairwoman Jessica Rosenworcel

April 20, 2022 – The U.S. Court of Appeals for the Ninth Circuit on Wednesday denied the efforts of telecommunications trade groups to to rehear its prior decision upholding California’s 2018 net neutrality law.

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In January 2018, the FCC – administered by then-Commissioner Ajit Pai – rescinded rules put in place in 2015 by the Obama administration that had reclassified broadband services from “information services” to “telecommunication services.”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

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Reporter Ben Kahn is a graduate of University of Baltimore and the National Journalism Center. His work has appeared in Washington Jewish Week and The Center Square, among other publications. He he covered almost every beat at Broadband Breakfast.

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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.

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1 week 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

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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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Net Neutrality

Industry, Non-profits React Predictably to FCC’s Proposed Net Neutrality Reinstatement

Many public interest groups highlighted what they said was the increased importance of broadband as a public utility.

Published

4 weeks ago

on

December 18, 2023

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Photo of the FCC Headquarters

WASHINGTON, December 18, 2023 – The public comment period concerning the Federal Communications Commission’s October decision to reclassify broadband as a Title II telecommunications service concluded on Thursday with a clash between industry stakeholders and public interest groups.

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.

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