FCC Proposes to Reinstate Net Neutrality

By Andy Regitsky

Despite warnings that it is not needed, and that it will almost certainly be rejected by the Supreme Court, the new fully staffed FCC re-introduced Net Neutrality at its October 19, 2023, meeting.  The new Net Neutrality proposal will be subject to industry comments in a Notice of Proposed Rulemaking (NPRM) in Docket 23-320.  Comments will be due on December 14, 2023.

In the NPRM the Commission proposes to:

Retake control over broadband Internet access service (BIAS) by classifying it as a telecommunications service under Title II of the Communications Act of 1934, as amended (Act), and

Retake control over mobile broadband Internet access service by classifying it as a commercial mobile service.

The FCC believes that reclassification would provide it with additional authority to safeguard national security, advance public safety, protect consumers, and facilitate broadband deployment.

In response to criticisms that a vibrant technology such as the Internet should not be regulated as a public utility, the Commission proposes to forbear from enforcing 26 Title II provisions, and states that it will not regulate broadband rates or require network unbundling.

Moreover, the FCC proposes to reestablish a uniform, national regulatory approach to protect the open Internet and prevent broadband Internet access service providers from engaging in practices harmful to consumers, by:

Proposing to reinstate straightforward, clear rules that prohibit blocking, throttling, or engaging in paid or affiliated prioritization arrangements;

Proposing to reinstate a general conduct standard that would prohibit unreasonable
interference or unreasonable disadvantage to consumers or edge providers; and

Proposing to retain the disclosure requirements under the current transparency rule and seeking comment on the means of disclosure, the interplay between the transparency rule and the broadband label requirements, and any additional enhancements or changes.

In defense of its NPRM, the Commission asserts that the pandemic demonstrated the urgency of an open Internet and the importance of one government agency having total control over this vital technology.

Restoring Title II authority will allow the Commission to safeguard and secure the open Internet in three significant ways.  First, this authority will allow the Commission to protect consumers,
including by issuing straightforward, clear rules to prevent Internet service providers from engaging in practices harmful to consumers, competition, and public safety, and by establishing a uniform, national regulatory approach rather than disparate requirements that vary state-by-state. Second, reclassification will strengthen the Commission’s ability to secure communications networks and critical infrastructure against national security threats.  Third, the reclassification will enable the Commission to protect public safety during natural disasters and other emergencies. (Draft NPRM at para. 3).

The biggest challenge the agency will face going forward is to defend the Title II reclassification of BIAS, since the DC Circuit Court affirmed the previous Commission’s decision to classify BIAS as a Title I information service that was only lightly regulated.  That Court, while tilting liberal ideologically, supported the conservative FCC under the Chevron Doctrine which asserts that an “expert” agency should be afforded deference in its decisions.  And while the DC Circuit may also ratify the current FCC classification under that same doctrine, the Supreme Court has recently given Chevron little credence.  Instead, the High Court has relied on the so-called “Major Questions” doctrine.  This asserts that if Congress has not provided clear marching orders for an agency order, it (the Court) will make the final decision on an important economic issue or question.  If that occurs (and it is likely) the conservative Supreme Court should have at least five votes to keep BIAS as a Title I information service.

While knowing it needs a powerful legal case to withstand Supreme Court scrutiny, the Commission offers nothing more than a rehash of its 2015 legal justifications.

[W]e propose to return to our prior interpretation, upheld by the D.C. Circuit, that sections 706(a) and (b) of the 1996 Act are grants of
regulatory authority and rely on that as a basis for our open Internet rules. We also propose to rely on our authority under Title II of the Act with forbearance where appropriate under section 10 of the Act, insofar as we reclassify BIAS as a Title II service. And we propose to once again rely on our broad spectrum management authority under Title III of the Act as additional authority specifically in the case of mobile providers. (Id., at para 193).

Frankly, it is hard to understand why the Commission is taking this action when it knows it is almost certainly doomed.  One theory is that President Biden and Democrats have made Net Neutrality a promise to their constitutes.  Therefore, they feel they have no choice.  Moreover, like student loan forgiveness, they can always blame its failure on the Republican Supreme Court. 

What a way to govern.  Instead of Congress working together to devise a bipartisan way to keep the Internet free without intrusive regulations, we go back-and-forth, classifying the Internet based on the political party that controls the FCC.  It is a complete waste of time and resources.  But here we are!