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Net Neutrality

D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC

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Photo-collage of Judges Robert Wilkins, Stephen Williams and Patricia Millett (left to right)

In-Depth Analysis of the D.C. Circuit Court’s Decision in Mozilla v. FCC Demonstrates It is Just the Beginning of a New Chapter

Debate Shifts to Congress and the States

The U.S. Court of Appeals for the District of Columbia, in Tuesday’s decision of Mozilla Corporation v. Federal Communications Corporation, handed the FCC a victory on the technically complicated and politically divisive issue of network neutrality.

Under Chairman Ajit Pai, in December 2017 the agency repealed regulations that had classified broadband internet access service as a form of “telecommunications” and hence subject to certain common carrier obligations. Instead, the Republican-led FCC changed broadband into an “information service,” with much less onerous regulations. This re-classification was largely upheld by the court.

However, that victory was tempered by the court’s requirement that the FCC make three specific changes to decision they took in 2017. The changes are on public safety, pole attachments and the Lifeline program. Moreover, by a two-to-one margin, the court decided to vacate FCC’s having purported to preempt “any state or local requirements that are inconsistent with [the FCC’s] de-regulatory approach.”

The decision by Judges Patricia Millett and Robert Wilkins and Senior Judge Stephen Williams (the dissenter on the preemption issue) will not put to rest the controversy associated with net neutrality.

Now, the matter is a four-ring circus:

  1. Future revisions to be made by the FCC;
  2. the appeals court’s implied invitation for Congress to clarify what the Telecommunications Act of 1996 had left ambiguous;
  3. states passing their own versions of net neutrality; and
  4. the possibility of an en banc rehearing by the whole circuit, or an appeal to the Supreme Court.

Basis for the Decision

The bulk of the court’s decision is per curiam, meaning that it is unsigned, and reflects the will of the court rather than that of any particular judge. Of the 186-page decision, 146 pages are in the “per curiam” portion, followed by a significant concurring opinion by Judge Millett, a nominal concurring opinion by Judge Wilkins, and a substantive dissent – from the portion of the decision dealing with preemption – by Judge Williams.

The voice in which the per curiam decision was written was one of duty: We as a court may not like what the FCC did in repealing net neutrality rules, but as an inferior court we are bound by the principles of Chevron, U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837 (1984) (“Chevron”) – which governs federal agency interpretation of ambiguous statutes – as well as National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005) (“Brand X”) – the last substantive decision by the U.S. Supreme Court on the regulatory classification of “information services.”

In Brand X, the Supreme Court majority upheld the decision of a Republican-controlled FCC to re-classify cable broadband service as an “information service.” After that 2005 victory, the agency also reclassified wireline and wireless broadband in the same manner.

Ping-pong continued as a subsequent Democratic-controlled FCC attempted to implement net neutrality rules several times. The first attempt kept broadband internet access as a form of “information service,” but regulated blocking and throttling of internet traffic. It was rebuffed by the D.C. Circuit. A second attempt came in 2014 to fundamentally re-classify broadband as a “telecommunications service” with some attendant common carrier obligations under Title II of the Communications Act. However, the FCC did forbear at that time from applying many of those regulations.

The rules decided in 2014 were repealed by the Pai FCC in 2017, effectively returning the classification of broadband to “no regulation.” That “no regulation” status quo was the state of play when the net neutrality legal and political fight began in earnest more than a decade ago. The Pai FCC has settled upon including a small additional requirement that broadband providers disclose terms and conditions of service.

In 2016, both a three-judge panel and, later, the majority of the entire D.C. Circuit Court upheld the Democratic FCC’s classification of broadband as a Title II “telecommunication service.” Now, this new three-judge panel unanimously agreed that it was perfectly appropriate for the FCC to change its mind and reclassify broadband as an “information service” under the less-regulatory Title I.

This was so, the per curiam decision reasoned, because Chevron required judges to defer to an agency’s construction of an ambiguous provision in a statute that it administers, if that construction is reasonable.

In the concurring opinion authored by Judge Millett, she said she “join[s] the Court’s opinion in full, but not without substantial reservation.” The result was “compel[led]” by Brand X, but she pointedly added that “I am deeply concerned that the result is unhinged from the realities of modern broadband service.” Her concurring opinion emphasizes that – given the underlying ambiguity of the Telecom Act – it was equally permissible for the FCC to “regulate” broadband as an “information service” or as a “telecommunications service.”

Important Regulatory Issues Raised About Pole Attachment and Lifeline

Classification decisions have an enormous impact upon providers of communications services, so Tuesday’s decision represented a victory for internet service providers and their allies at the FCC.

But while the court accepted the FCC’s reclassification as reasonable on most counts, there were three specific instances where the court ruled that the agency had not complied with the Administrative Procedure Act. Specially, the APA requires that agency regulations not be “arbitrary and capricious.”

The first of these rebuffs came on the issue of public safety. Most of the court’s discussion on this centered on the widely-covered controversy over Verizon capping the data limits of Santa Clara County firefighters’ broadband plan when they were battling wildfires in the summer of 2018.

Although not vacating the order on these grounds, the court said that the FCC’s “disregard of its duty to analyze the impact of the Order on public safety renders its decision arbitrary and capricious in that part and warrants a remand with direction to address the issues raised.”

Although that strong language will require the FCC to go back and bolster its rationale for the rule-change vis-à-vis public safety, it doesn’t quite cut to the heart of the regulatory conflict in the same way as did the court’s objections over pole attachments and the Lifeline program.

Specifically, revising pole attachments rules will likely pose a challenge to the FCC’s re-classification because the federal regime, mirrored by the states, requires access “to a pole, duct, conduit, or right-of-way owned or controlled by a utility.” Federal law governs this area of law under Title II, unless states “reverse-preempt” the statute, as permitted by the Communications Act, and establish their own pole-attachment regime. As the court noted:

  • But this whole regulatory scheme applies only to cable television systems and “telecommunications service[s]”— categories to which, under the 2018 Order, broadband no longer belongs. See 47 U.S.C. § 224(a)(4) (defining “pole attachment” as “any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility”) (emphasis added); id. § 224(f)(1) (“A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of- way owned or controlled by it.”) (emphasis added). Section 224’s regulation of pole attachments simply does not speak to information services. Which means that Section 224 no longer speaks to broadband. Per curiam, at 106.

Similarly, with regard to Lifeline, the federal system of subsidizing low-income consumers’ access to broadband is governed by provisions in Title II. Lifeline originally only subsidized telephone service. This was changed in 2016, when the FCC extended the program to cover broadband internet access. The court noted:

  • In the [2016] Lifeline Order, the Commission repeatedly referenced Congress’s overriding command to provide “telecommunication services to consumers.” (emphasis added to Lifeline Order). That made sense, given that Congress had tethered Lifeline eligibility to common-carrier status. To receive Lifeline support under the Act, an entity must be designated as an eligible telecommunications carrier—a category that extends to common carriers regulated under Title II. See 47 U.S.C. §§ 254(e), 214(e). This congressional understanding pervades the statute…. As a result, broadband’s eligibility for Lifeline subsidies turns on its common-carrier status…. As a matter of plain statutory text, the Order’s reclassification of broadband—the decision to strip it of Title II common-carrier status—facially disqualifies broadband from inclusion in the Lifeline Program. Per curiam, at 111.

In other words, the FCC will need to fundamentally reconfigure its rules governing pole attachments and Lifeline. The benefits associated with these rights – access to others’ poles and conducts, or subsidies pursuant to eligible telecommunications carrier status – are deeply enmeshed with the provisions that govern “telecommunications” either under federal law or under a state’s telecommunications regulations. Now, the FCC would need much more creative thinking in order to retrofit these benefits to broadband providers who are now no longer bound by the burdens of offering “telecommunications services.”

The Uncertain Status of State Net Neutrality Laws under Mozilla v. FCC

This final issue – the subject of Judge Williams’ dissent – has captured the most reporting and disputes about the court’s Mozilla v. FCC decision since it was issued earlier this week. Are states forbidden, or will states be forbidden, from enacting their own variations of net neutrality?

The simplest answer is that the FCC’s attempt to flex its muscles and assert its preemptive predominance over “any state or local requirements that are inconsistent” with its order has now been officially struck down. Therefore, any state requirement that imposes net neutrality regulations is presumptively valid. But when further litigation undoubtedly arises, the issue of so-called “conflict preemption” will be foursquare in the analysis. The reviewing court would have to consider whether that state’s law “stands as an obstacle to the accomplishment and execution of the [federal law’s] full purpose and objectives.” Per curiam, at 143, note 4.

Under the U.S. Constitution’s supremacy clause in Article VI, “the laws of the United States… shall be the supreme law of the land” to which state judges are bound. The heart of the controversy between the majority and the dissent is whether this preemptive supremacy extends to the actions of an agency that are not explicitly authorized by Congress.

“It is Congress to which the Constitution assigns the power to set the metes and bounds of agency authority, especially when agency authority would otherwise tramp on the power of States to act within their own borders,” according to the per curiam opinion, at 139. Rebuts Judge Williams: “Supreme Court decisions make clear that a federal agency’s authority to preempt state law need not be expressly granted.” Williams, at 3-4 (emphasis in original).

The majority considers and rejects the two arguments that the FCC made in justifying preemption. First is the “impossibility exception,” which deals with the impossibility of determining whether particular broadband traffic was interstate or intrastate. Second is what the FCC characterized as the federal policy of non-regulation for information services.

Judge Williams calls this “impossibility exception” a “a well-established ground of FCC preemption,” and that it plainly applies

  • [W]hen (1) the matter to be regulated has both interstate and intrastate aspects . . . ; (2) FCC preemption is necessary to protect a valid federal regulatory objective . . . ; and (3) state regulation would ‘negate the exercise by the FCC of its own lawful authority’ because regulation of the interstate aspects of the matter cannot be ‘unbundled’ from regulation of the intrastate aspects.” Williams, at 1-2, citing Public Service Comm’n of Maryland v. FCC, 909 F.2d 1510 (D.C. Cir. 1990).

The majority diminishes the importance of this impossibility exception, saying that it was born out of a footnote in an earlier Supreme Court case, Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355 (1986), that denied the FCC the authority to preempt a state law without specific congressionally delegated authority. “The ‘impossibility exception’ does not create preemption authority out of thin air.” Per curiam, at 129.

The majority’s second concern, over the FCC’s policy of non-regulation, gets at the logical conundrum between the two sides. Because the FCC has decided to limit its regulatory authority over broadband by making it an “information service,” the majority says it cannot bootstrap “ancillary authority” on the back of a de-regulatory policy that it – rather than Congress – is promulgating. In addition to Louisiana PSC, the majority repeatedly cites American Library Association for the proposition that the agency “literally has no power to act unless and until Congress confers power upon it.” ALA v. FCC, 406 F.3d 689, 998 (D.C. Cir. 2005).

Thus the majority takes the view that unless and until the FCC can make a successful “conflict preemption” challenge that a state law is in fact an “obstacle” to the full purpose and objective of a federal law, “then presumably the two regulations can co-exist as the Federal Communications Act envisions.” Per curiam, at 143. That system is one of co-existing and dual state and federal responsibilities: Federal regulation being responsible for interstate communication, and state regulation being responsible for intrastate communication.

But, says Judge Williams, this simply means that the federal rules will inevitably subject interstate commerce to the will of the state with the most regulatory rules, at least in the short term:

  • Just as an ISP cannot “comply with state or local rules for intrastate communications without applying the same rules to interstate communications,” it seems safe to say that an ISP bound to apply the rules of California to any of its service will also need—because of the impossibility of “distinguish[ing] between intrastate and interstate communications over the Internet,”—to apply those heavy-handed rules to all its service. Williams, at 4 (internal quotations from the FCC order).

Judge Williams later writes that this process is likely to take years: “The majority hints that through case-by-case litigation of conflict preemption, the Commission might be able over the years to obtain relief against some state impositions of regulation inconsistent with the Commission’s de-regulatory scheme.” Id., at 21.

Because state rules on net neutrality are not clearly and immediately preempted, it seems likely that the controversy of the FCC’s reclassification of broadband will now simultaneously play out in administrative, state-level, congressional and federal judicial forums.

About the author:

Drew Clark, the Editor and Publisher of BroadbandBreakfast.com, is a nationally-respected telecommunications attorney at The CommLaw Group. He has closely tracked the trends in and mechanics of digital infrastructure for 20 years, and has helped fiber-based and fixed wireless providers navigate coverage, identify markets, broker infrastructure, and operate in the public right of way. If you are interested in tracking legislative, judicial or regulatory developments impacting the regulation and regulatory status of broadband services in Congress and the states, contact Drew Clark at apc@commlawgroup.com.

Drew Clark is the Editor and Publisher of BroadbandBreakfast.com and a nationally-respected telecommunications attorney at The CommLaw Group. He has closely tracked the trends in and mechanics of digital infrastructure for 20 years, and has helped fiber-based and fixed wireless providers navigate coverage, identify markets, broker infrastructure, and operate in the public right of way. The articles and posts on Broadband Breakfast and affiliated social media, including the BroadbandCensus Twitter feed, are not legal advice or legal services, do not constitute the creation of an attorney-client privilege, and represent the views of their respective authors.

Net Neutrality

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.

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Photo of Joe Biden in July 2021 from the South China Morning Press

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.

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Explainers

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.

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Tim Wu, who coined "net neutrality," was appointed by the Biden White House to the National Economic Council

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 Bidenwithdrew 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.

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.

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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.

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Net Neutrality

For or Against, It’s Time To Consider Codifying Net Neutrality In Law, Panelists Say

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Photo of Morgan Reed from C-SPAN

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.

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