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The subdued net neutrality fight ahead

Oct 17, 2023
Illustration of a gavel in the shape of a cursor

Illustration: Sarah Grillo/Axios

The FCC's move to broaden its regulatory power continues to spark controversy, though it's muted compared with past fights.

Driving the news: Commissioners on Thursday will vote to classify the internet as a telecommunications service under Title II of the Communications Act.

  • The vote starts the rulemaking process, which will include a public comment period and take several months.
  • Reclassification would allow the agency to establish net neutrality protections, meaning prohibiting internet service providers from blocking access to content, slowing down traffic or showing preferential treatment to platforms.

State of play: The last net neutrality fight was heated, involving protestors camping outside of the FCC and death and bomb threats targeted at the agency.

  • This time around it's expected to be less dramatic: Proponents say support is well established, while opponents say the legal landscape offers a predictable outcome.

Flashback: Fight for the Future was among the advocacy groups at the forefront of getting net neutrality protections in place in 2015, saying it helped mobilize millions of people and organize massive online protests that at one point resulted in hundreds of thousands of phone calls to Congress in a single day.

  • Because that foundation has been laid, director Evan Greer said, "this time around should be fairly routine."

Meanwhile, the FCC's top Republican, Brendan Carr, said, "It's a waste of effort because this is going be dead on arrival either at the Supreme Court or at an appellate court level."

  • The D.C. circuit in 2019 upheld former President Trump's FCC Chair Ajit Pai's decision to repeal the net neutrality rules and abdicate the agency's authority under Title II.
  • Further, opponents are pointing to the Supreme Court's major questions doctrine, which stipulates that an agency's decision on an issue of major national significance must be supported by clear congressional authorization.
  • FCC Chair Jessica Rosenworcel's decision this year to rope in national security goals to the rulemaking may make it a bigger target under the doctrine.

What's happening: In addition to the three bright line net neutrality rules, Rosenworcel said reclassification would help protect consumer privacy and secure communications networks against national security threats.

The other side: Republicans say they support net neutrality legislation that includes the three bright line rules, but take issue with the overly broad power that reclassification would grant the agency over internet providers, particularly with respect to rate regulation.

  • Rosenworcel said rate regulation would be prohibited, but opponents say a future chair could simply decide to take back those powers.

Other arguments against the rulemaking include:

  • Various government agencies already have national security powers, and expanding the FCC's would not fill any gaps.
  • The FTC's power over internet service providers, including their privacy practices, would be stripped.

Yes, but: The FCC brings telecommunications expertise to national security and privacy issues that the other agencies lack, proponents say.

  • Said Greer: "The telecoms — understandably, because they're greedy, not idiots — want to kick this authority over to the FTC, who are completely beleaguered and overwhelmed with consumer protection cases, not able to get to the vast majority of enforcement that they should be getting to, totally underfunded, and completely lacking in the expertise in this area because there's an entire other federal agency that's supposed to do this."

Of note: Unlike in 2015, Rosenworcel today has to take into consideration the state net neutrality laws that have cropped up since Pai's revocation of the federal rules.

  • Although the D.C. circuit in 2019 upheld Pai's rollback, it did rule that state net neutrality efforts could move forward.
  • Rosenworcel said she wants to avoid a patchwork of state approaches and establish a nationwide standard that benefits consumers and internet companies.

Zoom in: California's net neutrality law went into effect in 2021, and now state officials want to make sure their protections aren't undermined by federal efforts.

  • "It's great that the FCC is doing this, but the next administration could revoke these rules and so it's important to have the California law remain intact," said state Sen. Scott Wiener, who sponsored the law.
  • Net neutrality proponents are looking for the FCC to set a floor that allows states with laws that go further to continue to exist and not be preempted by a federal standard.
  • "We want the existing state laws as a backstop. We don't really want to jeopardize that. It would be about saying states can go above and beyond this," ACLU senior policy counsel Jenna Leventoff said.
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