Chairwoman Rosenworcel has proposed the FCC take the first procedural steps toward reaffirming rules that would treat broadband internet service as an essential service for American life. With the need for Internet access now greater than ever after the pandemic moved work, healthcare, education, commerce, and so much more online, no American household or business should be forced to function without reliable broadband service. Such rules would affirm—under Title II of the Communications Act—that broadband service is on par with water, power, and phone service; that is: essential.
What is the goal of Chairwoman Rosenworcel’s Open Internet proposal?
Broadband internet service is too important to our society and economy not to have effective oversight. However, in 2018, the FCC abdicated its authority over broadband and repealed net neutrality protections. On September 26, 2023, FCC Chairwoman Jessica Rosenworcel shared with her colleagues a proposal that would begin the process of re-establishing the FCC’s oversight over broadband and restoring a uniform, nationwide framework for broadband policies, which would allow the FCC to protect internet openness and consumers, safeguard national security, and protect public safety.
The goals of the proposal:
- Openness
Establish basic rules for Internet Service Providers that prevent them from blocking legal content, throttling your speeds, and creating fast lanes that favor those who can pay for access. - Security
Enhance the FCC’s ability to work with national security partners to defend our networks from potential security threats. - Safety
Enhance the resiliency of broadband networks, including through providing the FCC with the authority to require Internet Service Providers to notify the Commission and consumers of internet outages. - Nationwide Standard
Establish a uniform, national standard for broadband policies rather than a patchwork of state requirements.
Why is it necessary to reclassify broadband service as a telecommunications service?
Broadband is essential - It enables us to access internet services that are critical to our daily lives.
- Our experience with the pandemic put this on full display, as we relied on our broadband connections to work and learn, obtain healthcare, purchase goods and services, connect with friends and family, and express our ideas. Congress understood this when it decided to provide an unprecedented amount of federal funding in the Bipartisan Infrastructure Law to fully close the digital divide.
- Given the ongoing importance of broadband to all Americans, the Commission has a responsibility to protect consumers and ensure the internet is fast, open, and fair.
- Reclassifying broadband as a telecommunications service will ensure the Commission has the tools it needs to protect consumers and fulfill its obligations to protect national security and promote public safety.
Will the Chairwoman’s proposal hurt broadband investment or the effort to close the digital divide?
- No. Broadband companies plan their investments years in advance, based on technological and competitive developments, and the Commission’s broadband classification decisions and longstanding open internet principles rarely are determinative factors in their business plans.
- In addition, the federal government and states have made massive investments to close the digital divide, particularly after the pandemic showed how essential broadband is to our daily lives.
- Much of broadband network development over the coming years is going to be the direct result of federal funding allocated by Congress in the Bipartisan Infrastructure Law and other federal and state government programs. Broadband companies will receive that funding and be legally obligated to build out regardless of what the Commission does in this proceeding.
- Title II reclassification will help speed broadband deployment by allowing broadband-only providers to access utility poles and other infrastructure and will also give the Commission additional tools to help address broadband competition in multiple tenant environments like apartments and condominiums.
- Meanwhile, safeguarding the open internet will foster edge innovation that will inspire consumer demand and spur further investment by broadband companies.
Will the proposed rules be used to regulate broadband prices?
- No. The current proposal, if adopted, would not allow for rate regulation of broadband service.
Will the proposal impact free speech?
- Freedom of speech will be enhanced by open internet rules, because they will prevent broadband providers from blocking or disfavoring any type of online speech.
- The FCC has no authority or interest to police online speech.
Would new rules survive a court challenge?
- Chairwoman Rosenworcel expects any final rules relying on the FCC’s Title II authority would survive any court challenges. Such rules have already been upheld before.
- That said, this is a proposal and if it is adopted, the Commission will take public comment and review the record.
- If final rules are challenged in court, challengers will have to grapple with the fact that the D.C. Circuit has previously upheld the Commission taking that same course of action.
What is the history of Net Neutrality rules?
- 2004: President Bush’s first FCC Chair challenged the broadband network industry to preserve “Internet Freedoms.”
- 2005: FCC issues Policy Statement affirming open internet principles.
- 2008: President Bush’s second FCC Chair tried to enforce these principles when Comcast “unduly squelche(d) the dynamic benefits of an open and accessible Internet.”
- 2010: The D.C. Circuit vacated the Comcast enforcement action, saying the FCC lacked legal jurisdiction.
- 2010: President Obama’s first FCC Chair adopted compromise rules “rooted in ideas first articulated” by the prior Chairs.
- 2014: Court overturns the 2010 rules in Verizon v. FCC on grounds that the rules were only grounded in authority granted by Section 706 of the Act and not also Title II.
- 2015: President Obama’s second FCC Chair adopted rules enshrining the open internet principles under Title II.
- 2016: Court affirms the 2015 rules.
- 2017: President Trump’s FCC Chair abdicated open internet rules and principles entirely.
- 2019: Court allows the abdication to move forward but overturns the FCC’s attempted preemption of state open Internet rules, and criticizes the FCC’s treatment of public safety and other issues.
- 2020: California’s net neutrality law goes into effect, and along with other state laws and orders, broadband providers must comply with a patchwork of state regulations.
- 2023: Chairwoman Jessica Rosenworcel proposes to reclassify broadband under Title II and reintroduce open internet rules.