By Marguerite Reardon
A new chapter in the ongoing saga of net neutrality and who governs the internet will take shape over the next year thanks to another shift in power at the Federal Communications Commission.
With new appointees from President Joe Biden firming up a Democratic majority at the agency, reinstating Obama-era net neutrality rules thrown out under the Trump administration will be a top priority for the agency.
Net neutrality is the principle that all traffic on the internet should be treated equally, regardless of whether you’re checking Facebook, posting pictures to Instagram or streaming movies from Netflix or Amazon. It also means companies like Comcast, which owns NBC Universal, can’t favor their own content over that of a competitor.
Supporters of net neutrality say rules are necessary to ensure broadband companies aren’t taking advantage of their power over the infrastructure that delivers content to your internet-enabled TVs, laptops, tablets and smartphones. But broadband companies and Republicans in Congress and on the FCC say the old rules gave the agency too much power, stifling broadband investment.
The result: Net neutrality regulations ping-ponging back and forth based on the political party in charge.
Late last year, Biden named Jessica Rosenworcel the permanent chair of the FCC. Biden’s other nominee for the FCC, Gigi Sohn, had her Senate confirmation hearing in December and now awaits votes from the committee and full Senate. If Sohn makes it through the confirmation process, Democrats will have the necessary 3-2 majority to lead the agency and reestablish the FCC’s authority to impose rules of the road for the internet.
At stake in this shift is whether the FCC will regain its authority to police the internet to ensure that broadband companies aren’t abusing their power as gatekeepers. The 2015 rules adopted under then-Chairman Tom Wheeler, a Democrat, prevented broadband providers from blocking or slowing access to the internet or charging for faster access. But the Trump-era FCC tossed out the rules, handing more limited authority over to the Federal Trade Commission but sparking states to pursue their own regulations and causing confusion over the state of net neutrality.
Bringing back the 2015 rules would reestablish the FCC’s oversight over broadband, giving the agency the authority to crack down on broadband abuses, such as weak privacy practices or fraudulent billing. Additionally, the authority, which under the old rules was established by reclassifying broadband as a Title II service under the Communications Act, would give the FCC solid footing to step in during an emergency like a pandemic to ensure consumers aren’t cut off from broadband service.
“This next chapter in net neutrality is about reestablishing the FCC’s oversight of our nation’s telecommunications network,” said Harold Feld, a senior vice president of the digital advocacy group Public Knowledge. “And if the FCC doesn’t establish its authority under Title II, then it doesn’t have authority over any telecommunications anymore.”
Feld added that shutdowns due to the coronavirus pandemic showed people that broadband is a necessity for remote workers and shopping, making it clear that such vital communications infrastructure should have some sort of federal oversight.
“It’s critical because when the world shuts down from a global pandemic, we need an agency that can make certain people aren’t cut off from service,” Feld said. “When there’s a major outage, like we’re seeing more regularly these days, we need an agency that will demand answers and require ISPs maintain their networks.”
Key policy and the digital divide
When the Trump administration, through FCC Chairman Ajit Pai, repealed the rules in 2017, it was to spur broadband investment. Since that time, Republicans have argued that doomsday predictions that broadband providers would abuse their power haven’t come to fruition and that investment in broadband is up. Democrats and supporters of the old rules, however, dispute these claims.
Now Biden and his fellow Democrats want net neutrality regulations back on the books, according to an executive order released in July. Biden cites a lack of competition as a major problem perpetuating the digital divide and sees the restoration of net neutrality protections as a key part of his agenda to close that divide. For years, policymakers have struggled to reach those without service.
“Big providers can use their power to discriminatorily block or slow down online services,” the White House said in a fact sheet explaining its executive order. “The Obama-Biden Administration’s FCC adopted ‘Net Neutrality’ rules that required these companies to treat all internet services equally, but this was undone in 2017.”
Ending deadlock and turning the page
Since Biden took office in January 2021, the FCC has been split 2-2 between Democrats and Republicans, which has left the agency unable to act on Democrats’ agenda to bring back net neutrality. With Rosenworcel confirmed and net neutrality activist Sohn expected to get the nod, Democrats will have their majority and will be poised to fulfill Biden’s promise to get net neutrality regulations back on the books.
Rosenworcel, who’s now in her third term on the FCC, was a commissioner who voted for the 2015 rules. She also voted against the repeal in 2017 and was outspoken about her opposition. Sohn has spent much of her career advocating for net neutrality protections. As an adviser to Wheeler, she helped craft the 2015 rules.
“Net neutrality is definitely something Chairwoman Rosenworcel feels strongly about, as do Commissioner Starks and Gigi Sohn,” Feld said. “So I expect it will move pretty quickly once the commission is filled out.”
The big question is how far the agency will go in terms of reestablishing the rules. Both Rosenworcel and Sohn made it clear during their Senate confirmation hearings that in addition to bringing back the 2015 rules that prohibit broadband providers from blocking and throttling traffic, the FCC needs to reestablish its authority over broadband.
“The impact of the rollback in 2017 is broader than just net neutrality,” Rosenworcel said during her hearing. “Because it took the FCC away from oversight of broadband. And coming out of this pandemic, I think all of us know that we need some oversight, because it’s become such an essential service for day-to-day life.”
Sohn, who some Republicans have painted as an extreme partisan, agreed with Sen. Roger Wicker, a Republican from Mississippi, that “light touch is better” when it comes to regulation. But she added that since the repeal of net neutrality in 2017 the FCC has had no authority over broadband. And that’s a problem.
“What I’m concerned about … is that we have no touch,” Sohn said. She added that the net neutrality debate of today isn’t just about preventing internet service providers from blocking and throttling access to content.
“It’s about whether broadband, which we all agree is an essential service, should have some government oversight,” Sohn said. “And right now it doesn’t.”
Critics of Sohn worry she’ll push for broader changes, such as rate regulation. But Sohn made it clear at her hearing she wouldn’t go that far. Separately, Rosenworcel said in written comments that she doesn’t plan to regulate broadband rates directly or indirectly.
Rosenworcel noted that the 2015 net neutrality rules “expressly eschew future use of prescriptive, industrywide rate regulation.” She added that she “supported this approach in the past and would do so again in the future.”
Though Democrats will be eager to get started, the process to reinstate net neutrality and reestablish FCC authority won’t be quick. Once Democrats gain a majority, they’ll have to issue a notice of proposed rulemaking and open the proposal for public comment. All told, new rules won’t likely be in place for at least a year.