WASHINGTON, March 6, 2019 – On Wednesday, 46 House and Senate Democrats moved forward with legislation that would codify so-called “network neutrality” legislation into law, bypassing a court dispute over their repeal by the Trump administration Federal Communications Commission.
The Save the Internet Act of 2019 would once re-instate network neutrality rules using an approach similar to last year’s attempt to use the Congressional Review Act to disapprove of the FCC’s repeal of net neutrality.
Last year’s CRA passed the Senate, but was never brought up for a vote in the House by the then-Republican majority.
Instead of enacting statutory prohibitions against paid prioritization, blocking and throttling of internet traffic by service providers, thereby writing network neutrality principles into what President Lyndon Johnson once called “the books of law,” the Save the Internet Act would declare that repeal order adopted by the FCC in December 2017 “shall have no force or effect,” and would prohibit the agency from reissuing any rule that is “substantially the same” as the one which repealed the 2015 rules, unless specifically authorized by an act of Congress.
If signed into law by President Donald Trump, the Save the Internet Act would literally turn back the regulatory clock by restoring the network neutrality regulations which were in effect on the last day of the Obama administration.
The similarities between this latest legislative effort to restore the Obama-era network neutrality rules and last year’s Congressional Review Act resolution go beyond the legislation’s text. The bill’s lead sponsors are Rep. Mike Doyle, D-Penn. and Senator Edward Markey, D-Mass., the duo behind the attempt to use a Congressional Review Act resolution to undo what was one of FCC Chairman Ajit Pai’s top priorities.
“Net neutrality ensures that when you pay your monthly bill to your internet service provider, you can able to access all content on the web at the same speed as your neighbor or big corporations,” said Markey, who has been a passionate advocate of strong network neutrality protections since the George W. Bush administration.
Markey called the Save the Internet Act a “clear and simple” piece of legislation, meant to “overturn the Trump FCC’s wrongheaded decision and restore strong net neutrality protections.”
Like last year’s Congressional Review Act resolution, this year’s Markey-Doyle team-up has the support of Democratic leadership in both the House and Senate.
Supported by House Speaker Nancy Pelosi
“It is an honor to join Democrats from both sides of the Capitol to introduce this strong legislation, which honors the will of the millions of Americans speaking out to demand an end to the Trump assault on net neutrality,” said House Speaker Nancy Pelosi, D-Calif. “Democrats are proudly taking bold action to restore net neutrality protections: lowering costs and increasing choice for consumers, giving entrepreneurs a level playing field on which to compete, helping bring broadband to every corner of the country, and ensuring that American innovation and entrepreneurialism can continue to be the envy of the world.”
Chris Lewis, Vice President of consumer advocacy group Public Knowledge, hailed the Markey-Doyle bill as “a simple, consensus approach to restoring strong net neutrality protections” with support from “a diverse and broad array of industry, nonprofit, racial justice, and other organizations.”
FCC Commissioner Geoffrey Starks said he was “pleased” with the proposed legislation.
“I continue to believe that the FCC’s 2015 Net Neutrality rules were the right approach and the bill introduced today takes us back in that direction—a direction that will empower the FCC to keep the internet open as a gateway to opportunity for students, job seekers, consumers, creators, and businesses,” said Starks, a Democrat and the newest member of the FCC.
Narrow CRA-like approach potentially on shaky legal ground
Representatives from Markey’s office did not respond to BroadbandBreakfast.com’s inquiry as to why Democrats were trying to restore old regulations rather than codify net neutrality protections into statutory language.
One longtime telecom industry observer suggested that the “simple, consensus approach” spoken of by Public Knowledge’s Lewis may be on shaky legal ground.
According to Berin Szoka, president of free-market think tank TechFreedom, the one-page bill is “a total sham, a fraud that cynically manipulates concern about net neutrality in a way that is carefully calculated to maximize Democrats’ political advantage instead of actually doing anything to protect net neutrality.”
Szoka suggested that Democrats, who managed to peel away three Senate Republican votes during last year’s CRA effort, are setting themselves up to use the copycat Markey-Doyle bill as a political bludgeon in hopes of gaining those Senate seats after the 2020 election.
He also noted that regardless of motivations, the legal basis on which the Democrats’ bill would revive the 2015 network neutrality rules is potentially shaky.
“Rarely, if ever, has such a short bill raised so many obvious legal problems,” Szoka said, noting that the Congressional Review Act — the authority on which the Save the Internet Act is based — allows Congress to strike down rules issued by regulatory agencies like the FCC, but not the orders by which an agency interprets provisions of a statute.
“Simply reviving a defunct regulatory order isn’t legislation, and probably wouldn’t stand up in court when challenged,” he said, adding that the bill is likely dead-on-arrival in the Republican-controlled Senate.
(Screenshot of Sen. Ed Markey courtesy MSNBC.)
Biden Signs Executive Order on Net Neutrality, Broadband Pricing Policy and Big Tech Merger Scrutiny
Executive order would kickoff new antitrust and net neutrality regulations.
July 9, 2021—President Joe Biden on Friday announced his intent to sign an executive order addressing an array of 72 initiatives, including net neutrality, and generally taking aim at big telecom and tech companies to address competition in the economy.
The White House released a fact sheet on the goals and the actions to be taken to achieve them.
The order would, among other things, task the Federal Communications Commission with reinstituting pre-Trump administration net neutrality rules.
Net neutrality refers to the concept that broadband providers must not block or throttle the content that consumers seek to access on the internet, or provide preferential access to content by business partners.
Under former President Barack Obama, the FCC in February 2015 enacted net neutrality rules promoting what his administration called “the open, fair, and free internet as we know it today.”
Broadband pricing policy
Biden’s order also tackled broadband policy and the digital divide more broadly.
It pointed to the 200 million Americans that live in regions with only one or two internet service providers and stated that this contributes to inflated internet service prices up to five times higher than in areas with more than two ISPs.
The order also condemned relationships between landlords and broadband providers that block new providers from expanding or improving broadband infrastructure to unserved and underserved areas, and it urged the FCC to enact rules to ban such deals and relationships.
To improve price transparency, Biden also urged the FCC to implement a “Broadband Nutrition Label” and require that all broadband providers report their service plans and rates to the FCC for evaluation.
Additionally, the plan directed the FCC to address unreasonably high, early termination fees enacted by broadband providers. The Biden administration argues that these fees are often in place only to discourage consumers from switching to what may be a superior internet service.
Big tech a target, too
In addition to broadband policy, the order would also take aim at data collection and mergers by big tech companies. The factsheet specifically mentioned that the order would tackle “kill acquisitions” designed to stifle perceived competitive threats to tech companies and pointed out that federal regulatory bodies have not done enough to prevent these mergers.
The administration would adopt a policy to greater scrutinize potential mergers, according to the White House fact sheet.
Additionally, the administration also condemned data collection policies by big tech companies, pointing to business models completely dependent on harvesting of sensitive consumer data. To address this, he tasked the Federal Trade Commission to draft new rules on consumer surveillance and data collection.
Net neutrality advocate at the FCC
FCC Acting Chairwoman Jessica Rosenworcel has been a longtime advocate for strong net neutrality laws. Though her critics have argued that there have been precious few examples of companies throttling their consumers internet speed, Rosenworcel has supported initiatives that would classify internet service providers as “common carriers,” and would forbid them from interfering in a user’s internet speed or the content they view.
Explainer: On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate
In the first in a series of explainers, Broadband Breakfast has hand-picked the debate on net neutrality to bring readers up-to-speed on its history and future.
With a change in the guard at the Federal Communications Commission and the White House, the United States is on the cusp of a possible change in direction with respect to its network neutrality rules.
By the summer of 2018, the country had changed its position on the issue when the Trump-era FCC voted to roll back Obama-era rules that, in 2015, cemented rules bolstering net neutrality. The roll-back essentially allowed the telecoms to manage and give preferential treatment to certain traffic that run on their networks.
But something changed. It started when the Department of Justice — the new one under the administration of President Joe Biden — withdrew a lawsuit started under Trump’s presidency against California for its proposed net neutrality rules. After the internet service providers lost a legal challenge to the proposed rules, California became the first state to implement the new legislation.
Join the Broadband Breakfast Live Online “Ask Us About Net Neutrality” on Wednesday, May 12, 2021. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.
Then the Biden White House appointed Tim Wu, a fierce advocate for and who coined the term “net neutrality,” to the National Economic Council this year.
There’s an emerging debate across the country about whether more states will follow suit or if a federal-level plan will emerge first.
Before that’s answered, Broadband Breakfast is taking a step-back and has put together an explainer on the issue to get you up-to-speed on its history and what’s at stake.
- Broadband Breakfast Explainer 1 (Net Neutrality): On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate
- Broadband Breakfast Explainer 2 (Spectrum): Is Spectrum Sharing a Key to Broader Connectivity Goals?
- Broadband Breakfast Explainer 3 (Section 230): With Florida Social Media Law, Section 230 Now Positioned In Legal Spotlight
- Broadband Breakfast Explainer 4 (Antitrust): Antitrust Heats Up as Biden Selects Tech Critic Jonathan Kanter for Top Enforcement Spot
What is net neutrality?
Net neutrality is the concept that traffic on networks cannot be blocked, slowed, accelerated or otherwise altered by internet service providers. In essence, it is the concept that legal internet activity must be treated equally.
The term was coined by Columbia University media law professor Tim Wu in 2003, in a paper about online discrimination. It was an extension of the longstanding concept of a common carrier, used to describe the role of telephone systems as infrastructure that simply transports traffic from one destination to the next with no influence.
The common carrier concept in common law countries says that, regardless of who is using the internet, what content is on it, the website being accessed, or the platform and application it is operating on, nothing will be discriminated against or favored more than another.
What happens when net neutrality is abandoned?
When net neutrality rules were rolled-back in 2018, the ISPs struck. According to Bloomberg, citing research out of Northeastern University and the University of Massachusetts, Amherst, wireless carriers have since slowed internet traffic to and from applications like YouTube, Netflix, and Microsoft’s Skype video chat service.
Proponents of zero-rating, the concept that includes apps not counting against users’ monthly data allowance, said it would provide for opportunities for those to experience these services without incurring cost – perhaps in overage charges. Opponents, however, argued it could possibly create an information divide, whereby the less advantaged would be forced to consume certain services and not others.
The rocky history of net neutrality
In the early 2000s, the Federal Communications Commission (FCC), a U.S. regulatory agency, required broadband providers to share their infrastructure with competing firms. In 2005, those requirements were struck down by the Supreme Court. The debate at the time was trying to determine if broadband service providers should also be considered as information services, which allows users to publish and store information online or on telecommunication services.
Watch our 2:57 minute preview video on Net Neutrality
The Obama administration approved net neutrality rules in 2015. This partially barred ISPs like AT&T and Comcast from purposefully increasing, sometimes called throttling, or decreasing speed access to websites based on demand or business preferences.
On the Obama White House Archives site, it says that most internet providers have treated internet traffic equally, “that an entrepreneur’s fledgling company should have the same chance to succeed as established corporations, and that access to a high school student’s blog shouldn’t be unfairly slowed down to make way for advertisers with more money.”
On February 26, 2015, the FCC voted in favor of strong net neutrality rules and on June 14, the same year, the U.S. for the District of Columbia fully upheld the FCC’s net neutrality rules. The Obama administration called it a victory for “the open, fair, and free Internet as we know it today.”
On November 21, 2017, FCC Chairman Ajit Pai, appointed by former President Trump, unveiled a plan to roll back the Obama administration rules. The plan went into effect on June 11, 2018, and on October 1, 2019, the D.C. Circuit Court of Appeals upheld the FCC’s plan to repeal most of the provisions of net neutrality but struck down a provision that would block states from implementing their own open internet rules. Chairman Pai said in a statement that the appeals’ decision was a “victory for consumers, broadband deployment, and the free and open Internet.” “The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior [Obama] Administration,” the statement said.
In 2018, the Senate voted to overturn the repeal of net neutrality but the resolution stalled in the House. The House then put it to a vote again in 2019 under the “Save the Internet Act,” but it was effectively dead in the water, at least until 2021.
In favor of net neutrality
Advocates in favor of net neutrality focus on providing smaller companies equal opportunity to thrive. By not allowing ISPs to determine the speed at which consumers can access certain websites or online services, smaller companies will be more likely to enter the market and create new services. Smaller companies are protected in the sense that they may not be able to afford “fast lane” access, while larger, more established companies can.
These advocates for net neutrality point out that several well-established social network websites were created without much seed capital. Had these small businesses been forced to pay extra in order to be as accessible online as their competitors, success may never have come.
Proponents of net neutrality include:
- Human rights organizations
- Consumer rights advocates
- Some software companies
These groups argue that cable companies should be deemed “common carriers,” similar to public utility companies or public transportation providers, who are by law, forbidden from discriminating among their users.
Public Knowledge, a non-profit Washington, D.C.-based public interest group focused on competition, digital choice in the marketplace, and an open standards and end-to-end internet, is in favor of net neutrality.
It says that without net neutrality rules, “ISPs like Verizon and Comcast can prevent users from visiting some websites, provide slower speeds for services like Netflix and Hulu, or even redirect users from one website to a competing website.” Public Knowledge claims that consumers would ultimately be hurt by anti-net neutrality policies, bearing the additional costs on things like their monthly Netflix bill or in the cost of goods from a local online store.
Against net neutrality
Advocates against net neutrality focus on investment incentives and cost concerns for broadband infrastructure. If ISPs are forced to treat all internet traffic equally, the government will ultimately discourage the investment in new infrastructure, and will also see ISPs be slow to innovate. Upfront costs with laying down fiber optic cable can also be very expensive. They say that not being able to charge more for more challenging areas of access will make the investment harder to pay off.
Opponents of net neutrality include:
- Conservative think tanks
- Major telecommunications providers
- Some hardware manufacturers
Telecommunication providers argue that “they must be allowed to charge tiered prices for access in order to remain competitive and generate funds needed for further innovation and expansion of broadband networks, as well as to recoup the costs already invested in broadband.”
Having less oversight on internet service by allowing some ISPs to charge for access to some content would lead to free access to certain sites, reports IT Pro. For example, if ISPs charged more money to bandwidth-hungry companies like Netflix for using their infrastructure, they could offer access to sites like Wikipedia or Facebook for free—even if a consumer had no internet contract.
Net neutrality controversies
The repeal of net neutrality rules has exposed some of the complexities of allowing ISPs to do what they wish with internet traffic. That isn’t more true than for the vertically-integrated providers, who both own the networks and content services that run on them. This has created a debate about possible anti-competitive behavior: what would stop a provider to block or slow traffic on a competing service and speed-up or eliminate data usage on their own services?
That’s exactly what happened with AT&T’s WatchTV streaming service, which was a new product in 2018, following its acquisition of Time Warner (now WarnerMedia). That year — after California backed down from cracking down on zero-rating — the service gave subscribers the option of a subscribing to a bundle of channels with no charge against their data allotment. (After California made its net neutrality legislation law this year, AT&T axed its zero-rating practice in the state and said it would likely have to do the same with the rest of the country.)
And then there were the 2018 California wildfires, some of the worst in the state’s history.
The bombshell from that was the Santa Clara fire department alleging Verizon had throttled its services, which “had a significant impact on our ability to provide emergency services,” the department said, according to Ars Technica.
The evidence was submitted as part of a lawsuit to reinstate federal net neutrality rules.
The telehealth question
The wildfires incident may take some bite out of the argument that net neutrality rules should be loosened to allow special exemptions to emergency services, but it’s quickly becoming a hot topic for another emerging segment: telehealth.
The Covid-19 pandemic has effectively upended the traditional in-person setting for nearly everything. But it’s especially problematic for medical services.
Critics of the net neutrality law in California are reportedly concerned that a telehealth app, VA Video Connect, whose use doesn’t count against users’ data caps, may be blocked under the legislation.
Boost Mobile, seeing the emerging opportunity, recently announced that it is bundling telehealth services with its packages.
There are exemptions that can be made in state and federal laws for emergency and health services, so time will tell what those could look like.
The future of net neutrality
As the federal government still has net neutrality on the ropes, states have stepped in to guard the internet’s traffic neutrality. Both proponents and opponents of net neutrality have argued that internet freedom will prevail if their side wins.
As of January 2021, 19 states, including the District of Columbia and Puerto Rico, introduced legislation in the 2020 legislative session that supports net neutrality.
Though some have taken net neutrality into their own hands, such legislation, even on a state level, can be challenging to implement. The FCC has claimed only itself has the authority to make these kinds of regulations, and that local and state governments cannot pass laws inconsistent with federal net neutrality rules.
In October 2019, a federal appeals court ruling in October 2019 largely upheld the decision to abolish net neutrality, “but ordered the FCC to examine its effect on public safety, federally subsidized broadband services, and utility pole regulations.”
Join the Broadband Breakfast Live Online “Ask Us About Net Neutrality” on Wednesday, May 12, 2021. You can also PARTICIPATE in the current Broadband Breakfast Live Online event. REGISTER HERE.
For or Against, It’s Time To Consider Codifying Net Neutrality In Law, Panelists Say
March 18, 2021 – The issue of net neutrality has captured more bandwidth than needed and the concept – either for or against – must be codified in the law so the issue doesn’t surface every election cycle, the president of the App Association said during a Federal Communications Bar Association event Thursday.
“Absent congressional action, this yo-yo will continue,” said Morgan Reed, whose organization represents app makers and connected device companies. Reed proposed Congress deal with the matter by, once and for all, putting it in the Telecommunications Act.
The debate about net neutrality, which stipulates that all internet traffic should be treated equally and that no telecom should be able to accept payment to speed up applications, has picked up since the Federal Communications Commission changed leadership and President Joe Biden took office.
The acting chairwoman has been a supporter of net neutrality. Biden’s justice department dropped a lawsuit recently challenging a proposed net neutrality law in California, which AT&T said forced it to stop offering free services because it would not be able to give it preferential treatment under the proposed law.
All roads seem to point to the reinstatement of net neutrality rules once instated by the Obama-era FCC but was reversed by the Trump-era regulator.
Currently, telecommunications is categorized as a Title I service, meaning it is spared from additional FCC regulatory burdens like managing content over its networks. That can be reversed if it is reclassified as a Title II, which effectively bring it under the ambit of the net neutrality rules.
Kristine Hackman, vice president of policy and advocacy at US Telecom, said operating under Title I regulations is not appropriate and outdated.
“We can’t regulate internet well with a statute that was written before World War II!” She defended ISPs and said they are not engaging in throttling, despite what she called false accusations suggesting otherwise, and said it is not in their natural conscience to even try to throttle since the consumer is in their minds.
Part of the issue with the approach to net neutrality is the confusion surrounding who governs the issues. Jon Peha, professor at Carnegie Mellon University, said that the newspapers these days confuse legal authority with the rules, saying the FCC’s authority to regulate is muddied with what authority the Federal Trade Commission has. He said the current position of the FCC is that it has no authority to deal with net neutrality, privacy, and even pole attachments, explaining that its authority over communications infrastructure is unclear.
- TPRC Conference to Discuss Definition of Section 230, Broadband, Spectrum and China
- Repealing Section 230 Would be Harmful to the Internet As We Know It, Experts Agree
- Amy Klobuchar Reiterates Need for Funding Agencies to Handle Big Tech
- Technology Policy Institute Introduces Data Index to Help Identify Connectivity-Deprived Areas
- AT&T’s Opens Learning Center in Dallas, Parallel Wireless Expands, AT&T 5G Experiment for National Defense
- Topic 2 at Digital Infrastructure Investment 2021: Last Mile Digital Infrastructure
Signup for Broadband Breakfast
Broadband Roundup1 month ago
Senators Intro App Bill, Groups Drop TracFone Buy Complaint, States Want Shorter Robocall Deadline
Infrastructure3 months ago
AT&T CEO Says $60-$80 Billion in Federal Dollars Should Suffice to Bridge Digital Divide
Infrastructure2 months ago
Lumen Responds to Allegations it Underbuilds While Collecting Public Funds
#broadbandlive4 months ago
Broadband Breakfast Live Online Wednesday June 2, 2021 — Rural Roll-Ups: Has the Rural Digital Opportunity Fund Accelerated Mergers & Acquisitions?
Antitrust3 months ago
Experts Disagree Over Need, Feasibility of Global Standards for Antitrust Rules
Broadband Roundup4 months ago
AT&T Phasing Out 3G, Iowa Expands Broadband Funding, NY Mayor Drags Kids Back To School
Artificial Intelligence4 months ago
Deepfakes Could Pose A Threat to National Security, But Experts Are Split On How To Handle It
Broadband Roundup3 weeks ago
Mapping Comment Deadline Extended, AT&T Gets Federal Contract, 5G and LTE Drive Microwave Demand