FCC votes to restore net neutrality

Net neutrality is the idea that internet service providers (ISPs) should not be able to discriminate against different kinds of content by blocking or throttling connection speeds or offering paid prioritization for different internet traffic. The FCC has sought to accomplish this by reclassifying ISPs as common carriers under Title II of the Communications Act, giving the agency more regulatory authority over them.

Democratic FCC Chair Jessica Rosenworcel said in remarks ahead of the vote that internet access went from a “nice to have, to need to have.” She added that, “Broadband is now an essential service. Essential services, the ones we count on in every aspect of modern life, have some basic oversight.”

While ISPs generally say they don’t breach the principles of net neutrality, they object to the reclassification, in large part because it could give the FCC the ability to regulate their pricing. In this case, the FCC has decided to forbear rate regulation as it relates to the ISPs, though a future iteration of the agency could undo that with another regulatory proceeding.

The FCC introduced net neutrality rules in 2015 after a large grassroots effort. But they were undone in 2017 when Trump-appointed Ajit Pai led the commission and helped to repeal them. In the meantime, states have stepped in with their own net neutrality laws, which advocates say have kept the ISPs at bay. But the industry claims that the lack of change in that period indicates that federal rules are unnecessary and fear they will impede investments in innovation.

Though much of the FCC’s order echoes that of 2015, the agency’s rhetoric and justifications have been somewhat updated. Rosenworcel has argued that the rules will give the agency greater oversight of internet outages and would close a critical loophole in its authority to address telecommunications companies that pose national security risks by barring them from offering internet services on top of other communications services.

FCC Commissioner Brendan Carr, a Republican who staunchly opposes the agency taking up net neutrality through Title II reclassification, argued during the agency’s open meeting that the move is a symptom of a larger issue. He said the maneuver is an example of how judicial deference to federal agency authority in cases where the law is ambiguous has incentivized the executive branch to engage in “pressure campaigns” to have agencies do their bidding.

He also argued that the FCC’s rate regulation forbearance is not legitimate, comparing it to the authority used by the Education Department to get rid of student debt that was struck down. “The FCC does not presume to have the sweeping power to refashion Title II into an entirely new legislative scheme by picking and choosing which parts to apply,” he said. “The FCC throws whatever it can think of against the wall to see if anything sticks.”

Democratic Commissioner Geoffrey Starks, who supported the rules, said he’s not concerned about how courts will evaluate the vote, saying the FCC’s authority to apply Title II to broadband providers is “clear as day.” He added that he opposes rate regulation of ISPs but disagrees with the notion that any affordable internet program can be construed as rate regulation. Starks called for a “permanent funding mechanism” for the Affordable Connectivity Program, which has provided internet subsidies for low-income consumers since the covid pandemic. The program is quickly set to run out of money if Congress fails to extend it.

Democrats Rosenworcel, Starks, and Anna Gomez voted to approve the rules, while Republicans Carr and Nathan Simington dissented.