It’s déjà vu all over again for net neutrality.
On Thursday, the Democratic-majority FCC voted along party lines to adopt an order that would largely restore the agency’s net neutrality rules from a decade ago. The move reignites the long-running political battle over internet regulation, and cable and telecom operators are expected to file a legal challenge to the FCC’s net neutrality order.
FCC Chairwoman Jessica Rosenworcel (pictured above) said the net neutrality rules — which prohibit internet service providers from blocking or degrading access to users — are critical to ensuring the internet remains “fast, open and fair” as well as secure.
The new order, dubbed Safeguarding and Securing the Open Internet, mostly hews to the Open Internet Order rules the FCC adopted in 2015 under President Obama before they were overturned in 2017 by the Trump administration. As with the original net neutrality rules, the 2024 version reclassifies broadband as a telecommunications service under Title II of the Communications Act of 1996, giving the FCC regulatory oversight of internet providers. In the absence of net neutrality, ISPs have been regulated as providers of Title I information services.
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The approval of the net neutrality measure comes after Democrats, led by Rosenworcel, attained a 3-2 majority on the commission with Biden appointee Anna Gomez confirmed as the FCC’s fifth commissioner last year.
“Broadband is now an essential service. Essential services — the ones we count on in every aspect of modern life — have some basic oversight,” Rosenworcel said at the FCC’s open meeting Thursday. “This is common sense. But in a world where up is down and down is up, the last FCC threw this authority away and decided broadband needed no supervision.”
Rosenworcel said the original net neutrality policies “made it clear your broadband provider should not have the right to block websites, slow services or censor online content.” She said those were “wildly popular,” citing surveys that 80% of Americans supported the FCC’s net neutrality policies and opposed their repeal.
Rosenworcel insisted that the Title II reclassification will not result in the FCC regulating broadband rates.
“This is not about rate regulation — no how, no way. And we will not undermine incentives to invest in networks. In fact, broadband investment was higher when net neutrality rules were in place than after they were repealed.” She also noted that the FCC’s net neutrality rules establish a national standard, after nearly a dozen states adopted their own regulatory policies when the previous FCC rules were repealed in 2017.
FCC Commissioner GeoffreyStarks, a Democrat, said, “Today, we take the important and necessary step to give control of the Internet to those who deserve it: Consumers.That is what this item is really about. Some, no doubt today, will claim that it is all a scheme for government control of the internet.But let’s be real.It is about ensuring that each and every American can use their broadband subscription to access the legal content of their choosing.”
Dissenting was Commissioner Brendan Carr, a Trump appointee, who said that broadband has flourished without net neutrality rules, which he likened to “1930s command-and-control regulation of the internet.” Congress “never passed a law” granting the FCC authority to regulate broadband as a utility and called the net neutrality order an “unlawful power grab,” he said. Carr also disputed Rosenworcel’s assertion that investment in broadband networks increased when the FCC’s previous net neutrality orders were in effect 2015-17 — saying just the opposite occurred.
Other critics of the FCC’s net neutrality revival have argued that they’re a solution in search of a problem.
“Internet service providers have always delivered open, unrestricted internet service. Consumers enjoy the web content and applications of their choosing without any blocking, throttling or interference,” cable trade group NCTA – the Internet & Television Association said in a policy statement. “Heavy-handed regulation will inject uncertainty, depress provider participation and jeopardize the [Biden] Administration’s Internet for All initiative. The FCC must back off its Net Fatality plan.”
NCTA president and CEO Michael Powell said in a statement after the vote, “This is a politically motivated reversal of prior law, not an exercise in evidence-based rulemaking. There is no evidence of a problem to be solved.” He said that “Public utilities are notorious for chronic underinvestment and glacial innovation. The FCC’s action uses our nation’s aging utilities and crumbling infrastructure as the model for today’s internet.”
Regarding an expected legal challenge, Powell said: “The good news is that the FCC’s action will be overturned in court. Congress has always been the appropriate forum to resolve these issues.We can only hope that the damage done to our vibrant internet ecosystem in the meantime will be limited.”
In 2015, cable and telecom providers sued to overturn the FCC’s Open Internet Order. The Supreme Court and U.S. Court of Appeals for the D.C. Circuit affirmed the agency had the discretion to reclassify broadband as a Title II service.
The text of the FCC’s “Safeguarding and Securing the Open Internet” rule is at this link. The order lets the FCC to “once again play a key role in preventing at the federal level broadband providers from blocking, slowing down or creating pay-to-play internet fast lanes” and give the agency oversight over broadband outages, according to a summary of the order. It establishes “broad, tailored forbearance — including no rate regulation, no tariffing, no unbundling of last-mile facilities, and no cost accounting rules — in the Commission’s application of Title II to broadband internet access service providers.”
In addition, the FCC’s 2024 net neutrality rules would improve security of broadband networks, according to the Democratic majority. Without reclassification of broadband as a Title II service, “the FCC is limited in its authority to direct foreign-owned companies deemed to be national security threats to discontinue any domestic or international broadband services” as the agency has done with telephone services. The FCC majority also says that without net neutrality, the agency has “limited authority to incorporate updated cybersecurity standards into network policies.”
In an April 23 letter, a group of 41 Republicans in Congress urged Rosenworcel to scrap the net neutrality rules. The lawmakers, led by House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-Wash.) and Senate Commerce Committee ranking member Sen. Ted Cruz (R-Texas), argued that the FCC was exceeding its congressional authority by applying utility-style regulation to the internet.
“Binding Supreme Court precedent confirms that the only body that can authorize public utility regulation of broadband is Congress,” the GOP letter to Rosenworcel said. “We therefore urge you to reverse course and maintain the [FCC’s] classification of broadband as an information service.”
