Old Conflict Returns: With a Full FCC, Net Neutrality Debate Is Back

The lull in the battle over telecommunications policy has ended. The fifth FCC commissioner, Anna Gomez was sworn in on Monday, ending the Commission’s 2-2 tie, which has been in place since President Biden was inaugurated more than two and a half years ago. Chairwoman Jessica Rosenworcel wasted no time in putting the most controversial issue of the last 20 years, net neutrality, back on the docket.

Roseworcel during a speech at the National Press Club in Washington today, said that she has already distributed a draft Notice of Proposed Rulemaking to restore net neutrality rules struck down by the previous FCC in 2017.

“This is a first step. When we vote on this rulemaking, we will invite public comment about how restoring net neutrality rules can help ensure internet access is fast, open, and fair. We will seek to develop an updated record on the best way to restore a uniform, national open internet standard,” she said.

The main ill created by repeal of the previous rules, Rosenworcel said, was the concurrent elimination of Title II telecommunications rules over the internet. The move to repeal restored the traditional “information service” internet classification which had been in place until 2015. She implied that lack of Title II regulation has harmed internet competition.

“I know the high cost of entry makes competition a challenge in many places. That is why almost half of us lack high-speed service with 100 Mbps download speeds or can only get it from a single provider,” Rosenworcel said. “On issue after issue, reclassifying broadband as a Title II service would help the FCC serve the public interest more efficiently and effectively.” She listed public safety, cybersecurity, privacy, national security, and network resilience/reliability as other issues the FCC could deal with more directly.

With Gomez’s entry on the Commission, the restoration of the rules appears to have a clear path to adoption. However, Commissioner Brendan Carr, who was part of the 2017 majority that repealed the previous net neutrality and Title II rules, suggested that the U.S. Supreme Court ultimately could strike down Title II application to the internet.

Title II, he said in a statement, would vastly increase the FCC influence over the economy beyond any level Congress granted. He says the court would likely strike down the rule under the major question doctrine. Carr referred to a new legal analysis published last week by Donald B. Verrilli, Jr. and Ian Heath Gershengorn, former solicitors general in the Obama Administration, to support his opinions.

But Rosenworcel is being cheered on by Democratic members of the Senate, who signed a letter urging her to “expeditiously reclassify broadband as a telecommunications service under Title II of the Communications Act. Doing so will enable you to effectively protect consumers from harmful practices online, promote affordable access to the internet, enhance public safety, increase marketplace competition, and take other important steps to benefit our nation’s digital future.”

Update, Sept. 29: The Commission has placed the draft Notice of Proposed Rulemaking on the Tentative Agenda for the next open agenda meeting, scheduled for Oct. 19 at 10:30 a.m. Eastern Time. It also released a copy of the draft NPRM. Perhaps in a move to compromise with net neutrality opponents, the portion of the draft that would reinstate Title II clarifies that the FCC does not seek to “regulate rates or require network unbundling.”