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Net Neutrality

In Possible Network Neutrality Prelude, DeMint to Demand 'Up or Down' Vote on Fairness Doctrine

WASHINGTON, February 20, 2009 – In what could potentially be an opening salvo in a renewed congressional battle over network neutrality, Sen. Jim DeMint, R-S.C., wants to use a parliamentary tactic to force his Democratic colleagues to vote on whether the Federal Communications Commission should be stripped of the power to re-impose the Fairness Doctrine on broadcast radio.

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WASHINGTON, February 20, 2009 – In what could potentially be an opening salvo in a renewed congressional battle over network neutrality, Sen. Jim DeMint, R-S.C., wants to use a parliamentary tactic to force his Democratic colleagues to vote on whether the Federal Communications Commission should be stripped of the power to re-impose the Fairness Doctrine on broadcast radio.

The Fairness Doctrine, which was scrapped in 1987 after the FCC found that it was necessary to foster diversity of viewpoints in the broadcast medium, mandated that, as a condition of their licenses, broadcasters provide an opportunity for both sides of view when reporting on controversial issues.

A few statements by Democratic legislators have raised the ire of conservative activists, who fear that Democrats intend to revive the old rule as a way of gagging talk radio, a medium widely seen as favorable to the political right.

Now that Democrats control both houses of Congress and the White House, the prospect of a Democrat-controlled FCC makes many Republicans wary that, after more than 20 years, the Fairness Doctrine might be revived.

FCC commissioner Robert McDowell, a Republican, raised an alarm in August when voting against an order reprimanding broadband internet provider Comcast for improper network management practices.

McDowell warned that the commission’s vote was a sign of a resurgent Fairness Doctrine. “I think it won’t be called the Fairness Doctrine by folks who are promoting it,” McDowell said at the time. “I think it will be called something else and I think it’ll be intertwined into the net neutrality debate.”

McDowell’s warnings on net neutrality have nothing to do with the Fairness Doctrine, said Marvin Ammori, general counsel for Free Press, the non-profit group that, with Public Knowledge, complained about Comcast’s network management practices at the FCC.

“Commissioner McDowell is wrong,” said Ammori. “He is simply confusing the issue.”

Ammori said that the only relationship he could find between the Fairness Doctrine and calls for an open Internet are “misguided attempts by those like Commissioner McDowell to confuse the two.” While Ammori called internet openness an issue with “wide political and public support on both sides of the isle,” he derided the Fairness Doctrine as “long defunct…with deservedly little political support.”

The lack of support alluded to by Ammori was confirmed by Acting FCC Chairman Michael Copps, a Democrat, who has said he has no intention of reviving the old rules without congressional intervention. Copps called the controversy “kind of yesterday’s fight,” and said such a choice should be left up to Congress.

Presidents Ronald Reagan and George H.W. Bush each vetoed legislation that would have revived the Fairness Doctrine.

President Obama has denied support for reviving the doctrine. But because a variety of court rulings have affirmed the FCC’s power to impose a variety of free speech constraints upon those who transmit over the airwaves, DeMint’s “Broadcaster Freedom Act,” S. 34, would permanently strip the body of any such authority.

The bill has languished since its introduction last month. DeMint wants to offer similar language as an amendment to the D.C. Voting Rights Act, which Senate Majority Leader Harry Reid, D-Nev., has placed on the Senate’s legislative calendar. DeMint could offer his amendment as early as Monday afternoon.

In a statement, Senator DeMint commended President Obama’s opposition to the doctrine. Nevertheless, DeMint wants his colleagues to take a position on it, one way or the other. “I intend to seek a vote on this amendment next week so every senator is on the record,” he said, asking his fellow senators: “Do you support free speech or do you want to silence voices you disagree with?’

Although the D.C. Voting Rights Act is the first item on the Senate’s legislative calendar when it reconvenes next week, staffers for DeMint were unsure whether Reid would allow any amendments to the legislation. But a press spokesman for Reid said that the bill would be open for amendments from the floor.

The Senate resumes business Monday at 2:00 p.m., and is set to consider both the D.C. Voting Rights Act and the nomination of Representative Hilda Solis, D-Calif., as Secretary of Labor.

Andrew Feinberg was the White House Correspondent and Managing Editor for Breakfast Media. He rejoined BroadbandBreakfast.com in late 2016 after working as a staff writer at The Hill and as a freelance writer. He worked at BroadbandBreakfast.com from its founding in 2008 to 2010, first as a Reporter and then as Deputy Editor. He also covered the White House for Russia's Sputnik News from the beginning of the Trump Administration until he was let go for refusing to use White House press briefings to promote conspiracy theories, and later documented the experience in a story which set off a chain of events leading to Sputnik being forced to register under the Foreign Agents Registration Act. Andrew's work has appeared in such publications as The Hill, Politico, Communications Daily, Washington Internet Daily, Washington Business Journal, The Sentinel Newspapers, FastCompany.TV, Mashable, and Silicon Angle.

Net Neutrality

Ninth Circuit Court of Appeals Denies Efforts to Eliminate California Net Neutrality Law

A coalition of telecommunication trade associations were unable to sway the court.

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Photo of FCC Chairwoman Jessica Rosenworcel

April 20, 2022 – The U.S. Court of Appeals for the Ninth Circuit on Wednesday denied the efforts of telecommunications trade groups to to rehear its prior decision upholding California’s 2018 net neutrality law.

In January, the court turned back industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, who had sought to overturn California’s SB 822 on the grounds that the Federal Communications Commission federal rules on net neutrality conflict with California’s state level rules.

Then, the appeals court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

On Wednesday, the appeals court refused to reconsider whether the California law had been preempted by the FCC’s decision.

In January 2018, the FCC – administered by then-Commissioner Ajit Pai – rescinded rules put in place in 2015 by the Obama administration that had reclassified broadband services from “information services” to “telecommunication services.” The latter category is subject to far more regulations.

Later that year, California passed SB 822, putting net neutrality requirements in place for California consumers, even after the rules had been gutted at the federal level by the FCC.

On the federal level, the D.C. Circuit Court of Appeals upheld the Trump administration’s removal of net neutrality requirements in October 2019. Although the Pai FCC’s reclassification was largely upheld by the D.C. circuit court, the victory was tempered by the court’s decision, by a two-to-one margin, to vacate the FCC’s having purported to preempt “any state or local requirements that are inconsistent with [the FCC’s] de-regulatory approach.”

In a tweet about Wednesday’s ruling, FCC Chairman Jessica Rosenworcel said:

  • The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law. This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land.

“As expected, the 9th U.S. Circuit Court of Appeals has rejected yet another attempt by internet service providers to overturn California’s strong net neutrality law,” said John Bergmayer, Legal Director at Public Knowledge.

“The California net neutrality law is now undefeated in court after four attempts to eliminate it,” he said. Net neutrality protections nationally continue to be common sense and popular with the public among all ideologies. It’s good news that Californians will continue to enjoy this important consumer protection, and we look forward to a full Federal Communications Commission restoring net neutrality nationwide.”

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Net Neutrality

Federal Appeals Court Upholds California’s Net Neutrality Rules

The ruling prevents internet providers in the state from abandoning net neutrality for broadband customers.

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Photo of Mary Schroeder, Chief Judge of the Ninth Circuit Court, from the May 2006 Swarthmore commencement address

January 28, 2022 – The Ninth Circuit Court of Appeals on Friday ruled against broadband companies seeking to block a state net neutrality law, and internet policy advocates are calling it a win for consumers in California.

The ruling comes after industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, sought to overturn California’s law on the grounds that the Federal Communications Commission’s now-abandoned federal rules on net neutrality conflict with California’s state level rules.

The court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

SB 822, or the California Internet Consumer Protection and Net Neutrality Act of 2018, restricts internet service providers from some activities. For example, the state law prevents paid prioritization, or agreements that would optimize data transfer rates large companies including Facebook, Google and Netflix.

The law also prohibits so-called “zero-rating” practices that some believe exploit consumers by allowing free access to some services but not others.

John Bergmayer, legal director at Public Knowledge, called the ruling a “great decision and a major victory for internet users in California and nationwide.”

“When the FCC has its full complement of commissioners, it should put into place rules at least as strong as California’s nationwide, making some state measures unnecessary. But even after that happens, this decision clarifies that states have room to enact broadband consumer protection laws that go beyond the federal baseline.”

But Randy May, president of the Free State Foundation, said “like a lot of Ninth Circuit decisions, it is arguable that the court got the law wrong regarding whether California’s net neutrality law is preempted. Given the inherently interstate nature of today’s tightly integrated broadband internet networks, there’s a good chance that other circuits might reach a different conclusion regarding preemption.

May said that the risks of a patchwork of state regulations “should prompt Congress to resolve the decades-old net neutrality controversy by adopting a new law that prevents consumer harm while recognizing the technologically dynamic nature of today’s Internet ecosystem.”

The opinion was authored by Ninth Circuit Chief Judge Mary Schroeder and joined by Judge Danielle Forrest with a concurrence by Judge J. Clifford Wallace.

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Net Neutrality

Rosenworcel Stands Firm on Net Neutrality in Face of Lawmakers Urging Status Quo

The FCC chairwoman responded to a letter by members of Congress resisting calls to back down on net neutrality.

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FCC Chairwoman Jessica Rosenworcel and former Chairman Ajit Pai

WASHINGTON, January 4, 2022 – Federal Communications Commission Chairwoman Jessica Rosenworcel said in a letter to lawmakers last week that she continues to stand by her view that the restoration of net neutrality principles would be the best move for the internet economy.

Rosenworcel was responding to an April letter by over two dozen members of Congress, who urged the chairwoman to maintain the current “light touch” regulations imposed by the 2017 commission, led by chairman Ajit Pai, who was appointed by then-President Donald Trump. That change rolled back net neutrality rules imposed by the 2015 Obama-era commission, which prevented internet service providers from influencing the content on their networks, including barring carriers from providing certain services for free over their networks – also known as “zero rating.”

In her letter on December 28, Rosenworcel, who was confirmed as commissioner of the agency by the Senate earlier that month, said the net neutrality principles of 2015 were the “strongest foundation” for the internet economy as a whole and is “fundamental” to the “foundation of openness.”

“Those principles drove investment on the edges of the network, which network operators responded to by investing in infrastructure that allows consumers to access the services of their choosing,” Rosenworcel said in the letter.

“I stand ready to work with Congress on this topic, as necessary,” she added. “However, I continue to support net neutrality and believe that the Commission has the authority to adopt net neutrality rules.”

The lawmakers – which include Cathy McMorris Rodgers, R-Washington, and Bob Latta, R-Ohio – used as support the efforts of service providers to maintain a robust network during the pandemic, as well as their willingness to waive late fees and open Wi-Fi hotspots as additional reasons for the commission not to impose further regulations on business. The letter also noted that the Department of Justice’s withdrawal of a lawsuit against a net neutrality law in California led to two providers axing services that relied on zero rating protections.

The lawmakers challenged previous comments made by Rosenworcel, who said that it was unfortunate that California had to fill a void left by the net neutrality rollbacks. But Rosenworcel reiterated those comments. “It is unfortunate that individual states have had to fill the void left behind after the misguided roll back of the Commission’s net neutrality policies,” she said in her letter.

And while the lawmakers said they “agree that harmful practices such as blocking, throttling, and anticompetitive behavior should not be permitted…we can achieve this without heavy-handed overregulation.”

The current make-up of the FCC includes two Democrats and two Republicans. President Joe Biden’s pick for a fifth Democratic commissioner to break the party deadlock, net neutrality advocate Gigi Sohn, is still awaiting a confirmation vote by the Senate.

This week, Sohn received endorsements from former FCC officials, but has received some apprehension from some lawmakers and a police association over her stance on end-to-end encryption.

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