The fierce debate over how the Federal Communications Commission should regulate broadband internet will continue to rage on with the agency’s vote Thursday to kick off proceedings to reinstate net neutrality rules.
The FCC, which last month gained a full roster of commissioners and a Democratic majority for the first time under the Biden administration, finds itself swinging once again towards implementing open internet regulations that would require internet service providers to treat all data flowing over their networks equally. It will vote Thursday on whether to open a Notice of Proposed Rulemaking to public comment.
The agency first reclassified ISPs as “common carriers” akin to telephone lines and public utilities under President Barack Obama in 2015. The regulations flipped in 2017 when the new Republican majority voted to repeal the rules and again treat broadband as a less-regulated “information service.”
The regulatory whiplash between changing presidential administrations has spurred bitter political fights and lengthy legal battles from the telecommunications industry. The upcoming rulemaking is certain to bring more litigation and will likely reignite the acrimonious debate about how to classify broadband under the Communications Act.
“Net neutrality has been an on-again off-again football for quite a while now, going back arguably to 2003,” said Christopher Terry, a communications professor at the University of Minnesota.
But unlike the previous attempts to implement open internet rules, Terry said, the FCC this time around has a clearer road map based on past court rulings. “They’re not reinventing the wheel here, they’re just putting the tires back on the car,” he said.
Proponents of net neutrality have argued that classifying ISPs as common carriers under Title II of that law would prevent broadband companies from blocking or throttling content from those who don’t pay for internet “fast lanes.” Opponents argue internet providers should remain under the lighter touch regulations of Title I, which they say encourages private investment in broadband infrastructure.
Now, FCC Chairwoman Jessica Rosenworcel has just over a year to re-implement those rules before the 2024 presidential election. The time crunch has been visible: she announced the vote to begin the rulemaking process the day after Anna Gomez, the agency’s newest Democratic commissioner, took office in late September.
Re-Litigating History
The public comment period—which will open after the commission’s vote—will draw arguments and examples from both sides attempting to trace a narrative about the past six years of more relaxed internet regulation.
Opponents of common-carrier rules have consistently argued that net neutrality is a solution in search of a problem, and that fears of unregulated ISPs ruining the internet by blocking content have been overblown.
The FCC shifted its rationale for net neutrality in its most recent announcement by focusing on how Title II rules can help cybersecurity and public safety, said Tom Johnson, an attorney at Wiley Rein LLP who served as the FCC’s general counsel when it repealed net neutrality rules. He said he views that as an admission that “we haven’t seen any of the histrionic predictions” about the destruction of the internet in the wake of the repeal.
Open internet groups have pointed to a range of examples of companies such as
Net neutrality advocates also argue that states such as California and Washington moved quickly to implement their own net neutrality rules in the wake of the 2017 repeal, which prevented many of the consequences of diminished federal regulations.
“The truth may be somewhere in between,” Marc Martin, a telecom attorney at Perkins Coie LLP, said. Given California’s size and economic power, large ISPs “may very well have decided to follow net neutrality principles just to avoid the complexity of having different rules for different places.”
The two sides have also clashed over whether broadband investment increased or declined during the short window of net neutrality rules.
Blake Reid, a telecom law professor at the University of Colorado, said the short time frame between regulatory pendulum swings could actually have a “moderating effect” on the actions of broadband companies, who would prefer to err on the side of caution to avoid running afoul of stricter rules the FCC may implement later.
The uncertainty and costly litigation initiated after each rule change is still harmful to businesses, according to Diane Holland, another Wiley Rein partner and former FCC attorney. The uncertainty could ultimately end if the US Supreme Court decides to weigh in on whether the FCC has the authority to classify broadband under Title II. That could be many years away if the telecom industry sues after regulations are implemented.
The ideal solution would be for Congress to clarify the status of internet services, Holland said. The FCC’s regulatory changes have shifted internet services to different classifications under the 1934 Communications Act, which became law many decades before the internet existed. Bipartisan net neutrality proposals have been floated over the years, but none have advanced.
“If Congress could address once and for all what authority the commission has to regulate broadband internet, that would be a positive for everyone,” Holland said.
Moving Quickly
President Joe Biden announced plans to restore net neutrality early in his term, but the FCC remained deadlocked for two years, with only four out of five commissioner slots filled. The commission secured a Democratic majority with Gomez’s confirmation last month, but only after a lengthy conservative opposition campaign forced Biden’s original nominee to withdraw.
The years-long deadlock has amped up pressure on the FCC to complete the rulemaking process soon.
If Republicans were to win the White House and majorities in Congress next year, they could wield the Congressional Review Act to quickly repeal the rules, according to Martin. The law allows Congress to overturn certain agency rules within 60 days after they’re published in the Federal Register—using filibuster-proof procedures that require only a simple majority in the Senate.
That threat of congressional intervention isn’t theoretical. Obama’s FCC adopted a set of broadband privacy rules governing how ISPs can use customers’ personal information in late October 2016, just before the election. In early 2017, Trump and the newly Republican-controlled Congress repealed the privacy rules using the CRA.
“It was because it was done so late that they were able to reach back and repeal it,” Martin said. “That’s where timing becomes really important.”
Martin and other telecom attorneys told Bloomberg Law that the FCC will likely be able to complete the final rules within a year. After the commission votes on the Notice of Proposed Rulemaking on Thursday, the public comment period will open, with initial comments due on Dec. 14 and reply comments due on Jan. 17.
Johnson predicted that the FCC may receive requests for extensions on those deadlines given the high public interest and the large volume of comments in the previous rulemaking.
“It’s going to be a very tight timetable around the holidays,” he said.
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