WASHINGTON, September 27, 2023 – Experts disagreed at a Broadband Breakfast Live Online event on Wednesday whether reinstituted Federal Communications Commission rules on net neutrality would survive legal challenges. 

The FCC announced on Tuesday that it is looking to reinstate its 2015 net neutrality regulations, which involve categorizing broadband internet as a Title II service under the Communications Act of 1934. That would give the commission more muscle to regulate the industry, on par with its authority over telephone companies.

In particular, the commission is looking to prevent carriers from throttling or increasing users’ speed depending on the site they want to access.

The move survived legal scrutiny in 2016, when the D.C. Court of Appeals held the agency had the authority to classify technologies under the act as it saw fit. The Supreme Court would ultimately refuse to hear the case and let the D.C. ruling stand.

Berin Szoka, president of policy think tank TechFreedom, said Wednesday the legal landscape has changed since then, with a conservative majority on the Supreme Court that is more willing to tell federal agencies they are overstepping their boundaries.

“In the last six years, the ground has shifted very significantly,” he said.

He pointed to a dissent from then-D.C. Circuit judge Brett Kavanaugh when the court refused to rehear the net neutrality case. Kavanaugh, now part of a conservative majority on the Supreme Court, argued the FCC’s move to reclassify broadband was too drastic for it to do without explicit authorization from Congress.

“That was a dissent in 2017. That’s now the Court’s majority position,” he said, referring to the so-called major questions doctrine. Under the doctrine, the Supreme Court has ruled in recent years that federal agencies cannot enact policies that address major economic or political questions without explicit congressional authorization, giving agencies less authority to regulate as they see fit.

Stephanie Joyce, chief of staff and senior vice president of the Computer & Communications Industry Association, a tech trade group, said the doctrine might not apply to the FCC’s action at all.

She compared net neutrality rules to the EPA’s attempt to transition power plants to clean energy sources, which the Supreme Court nixed under the doctrine.

The EPA had not taken such a step before, she said, making it a bigger change in regulation than the FCC’s reclassification of broadband. That and other technology reclassifications have precedent at the commission, she said, including both the 2015 rules and a 1998 reclassification of DSL technology.

“I’m not sure the major questions doctrine is going to carry the day here,” she said.

Chip Pickering, CEO of another tech trade group, INCOMPAS, agreed that “there’s a lot of uncertainty” about how the Supreme Court would treat a challenge net neutrality rules from the FCC. But he said that a gridlocked Congress has little chance of enacting wider regulation on internet providers.

“Title II has, so far, been the only authority that’s been upheld on net neutrality,” he said. “And we have to act now.”

FCC commissioners will vote on whether to put up the proposed rules for public comment on October 19, barring a government shutdown.

Our Broadband Breakfast Live Online events take place on Wednesday at 12 Noon ET. Watch the event on Broadband Breakfast, or REGISTER HERE to join the conversation.

BREAKING NEWS SESSION! Wednesday, September 27 – What Happens Next on Net Neutrality?

Federal Communications Commission Chairwoman Jessica Rosenworcel wasted no time in promulgating rules regarding network neutrality. With Anna Gomez’ confirmation as the elusive fifth commissioner, Democrats finally have a majority at the agency. The chairwoman has said that she will put forward proposed rules on the topic at the agency’s open meeting on October 19. The partisan-tinged topic is expected to largely be a return of the 2015 rules under the agency’s authority under Title II of the Communications Act. One day after Rosenworcel’s Tuesday speech on net neutrality – and one day before the item is publicly released – Broadband Breakfast will convene industry and civil society stakeholders in a discussion about What Happens Next?

Panelists

• Chip Pickering, CEO, INCOMPAS
• Stephanie Joyce, Chief of Staff and Senior Vice President Computer & Communications Industry Association
• Joe Kane, Director, Broadband and Spectrum Policy, Information Technology and Innovation Foundation
• David Zumwalt, CEO, WISPA: Broadband Without Boundaries
• Berin Szoka, President, TechFreedom
• Drew Clark (moderator), Editor and Publisher, Broadband Breakfast

Panelist resources:

• FCC Looking to Reinstate Net Neutrality Rules, Broadband Breakfast, September 26, 2023
• On the Cusp of Sea Change, Broadband Breakfast Examines the Net Neutrality Debate, Broadband Breakfast, May 11, 2021
• D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC, by Drew Clark, Broadband Breakfast, October 7, 2019

Please note: The originally scheduled Broadband Breakfast Live Online event, on renewing the Affordable Connectivity Program, will now take place on October 11, 2023.

For nearly three decades, Chip Pickering has been at the forefront of every major telecommunications milestone. From his time as a Senate staffer on the Commerce Committee shaping the Telecommunications Act of 1996, to his role as a Member of Congress leading on tech issues and overseeing the transition to the commercial internet, to serving as CEO of the leading internet and competitive networks association advocating for more competition and innovation in our ever-evolving industry. Through his leadership at INCOMPAS, Pickering continues to be a trusted voice and a leading expert on important issues facing the tech and telecommunications industry.

Stephanie Joyce joined CCIA after decades in private practice representing technology companies and competitive carriers before state and federal administrative agencies and courts. She is an experienced advocate for procompetitive policy, including her advocacy for CCIA at the FCC on broadband deployment and Open Internet rules. Stephanie has also provided counsel to telecommunications companies, as well as CCIA, on privacy matters. Stephanie is a graduate of the University of Notre Dame, received her graduate degree from George Washington University Elliott School of International Affairs, and her law degree from George Washington University Law School.

Joe Kane is director of broadband and spectrum policy at ITIF. Previously, he was a technology policy fellow at the R Street Institute, where he covered spectrum policy, broadband deployment and regulation, competition, and consumer protection. Earlier, Joe was a graduate research fellow at the Mercatus Center, where he worked on Internet policy issues, telecom regulation, and the role of the FCC.

David Zumwalt is CEO & CEO of WISPA – Broadband Without Boundaries.WISPA represents the interests of innovative, often small ISPs that provide fixed wireless, fiber and other connectivity solutions to consumers, businesses, first responders and community anchor institutions in the digital divide.  Supported by a robust vendor and supplier ecosystem, these ISPs deliver primary broadband connectivity in traditionally underserved and unserved suburban, rural and tribal communities nationwide, with a growing subscriber base now reaching nine million Americans. Prior to WISPA he served as Chief Operating Officer of Broadband VI, a major Internet Service Provider in the US Virgin Islands.  He also served as the Executive Director of the University of the Virgin Islands Research & Technology Park, an instrumentality of the USVI government formed to establish and grow a vibrant knowledge-based sector in the Territory’s economy.  He also founded and served as Chairman and CEO of Dallas-based CNet, Inc., a leading provider of radio frequency (RF) engineering and operational support system software and services to the worldwide wireless communications industry, securing significant customer relationships in forty countries.

Berin Szoka serves as President of TechFreedom. Previously, he was a Senior Fellow and the Director of the Center for Internet Freedom at The Progress & Freedom Foundation. Before joining PFF, he was an Associate in the Communications Practice Group at Latham & Watkins LLP, where he advised clients on regulations affecting the Internet and telecommunications industries.

Breakfast Media LLC CEO Drew Clark has led the Broadband Breakfast community since 2008. An early proponent of better broadband, better lives, he initially founded the Broadband Census crowdsourcing campaign for broadband data. As Editor and Publisher, Clark presides over the leading media company advocating for higher-capacity internet everywhere through topical, timely and intelligent coverage. Clark also served as head of the Partnership for a Connected Illinois, a state broadband initiative

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As with all Broadband Breakfast Live Online events, the FREE webcasts will take place at 12 Noon ET on Wednesday.

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WASHINGTON, September 27, 2023 – The telecom and software industries returned to familiar arguments in reaction to the Federal Communications Commission’s announcement that it is looking to revive net neutrality rules.

The draft proposal would classify broadband as a Title II service under the Telecommunications Act of 1934, giving the commission more regulatory muscle over the industry – particularly ensuring internet providers cannot throttle or speed up traffic to certain sites. The FCC made the same change in 2015, but it was repealed by Trump-appointed chairman Ajit Pai just two years later.

JOIN US FOR A BREAKING NEWS SESSION of Broadband Breakfast Live Online on Wednesday, September 27 – What Happens Next on Net Neutrality?

Telecom and internet companies have argued this would be an excessive burden that stifles innovation and increases deployment costs. Tuesday was no different, with NCTA – The Internet and Television Association, a trade group representing cable and internet providers like Comcast and Charter, issuing a statement in opposition.

The rules would “complicate the calculus of deploying networks in expensive, risky, and hard-to-serve markets,” the statement read.

Internet companies have also argued net neutrality is simply unnecessary, citing a lack of widespread throttling after the rules were repealed in 2017, although studies found it did occur on some services like Youtube and Netflix.

FCC Chairwoman Jessia Rosenworcel, speaking at an Axios event on Wednesday, chalked up the relatively unchanged consumer experience to a patchwork of state laws that sprang up after the commission repealed its rules

“The truth is, we’re living in a world with open internet policies in place,” she said. “But they’re coming from state capitals.”

Software companies also tread familiar ground. In a 2018 brief to the D.C. Appeals Court, the Computer & Communications Industry Association – another trade group representing major software companies like Google and Meta – argued against the FCC’s rollback of net neutrality rules, citing investment booms in cloud-based and streaming services resulting from mandatory equal accessibility.

“Reinstating those protections will ensure that America’s digital economy is inclusive, open, and stable,” the group’s chief of staff Stephanie Joyce said in a statement on Tuesday. 

The draft rules will be up for public comment if approved by a vote of FCC commissioners on October 19.

JOIN US FOR A BREAKING NEWS SESSION of Broadband Breakfast Live Online on Wednesday, September 27 – What Happens Next on Net Neutrality?

WASHINGTON, September 26, 2023 – The Federal Communications Commission is planning to seek comment on reinstating net neutrality rules, FCC Chairwoman Jessica Rosenworcel announced on Tuesday.

Net neutrality rules give the FCC more authority to regulate internet companies by classifying broadband as an essential communications service under Title II of the Communications Act of 1934, including the power to prevent internet providers from adjusting the speed of network traffic to favor certain sites. The agency instated similar rules in 2015 before they were repealed by then-Republican Chairman Ajit Pai in 2017.

JOIN US FOR A BREAKING NEWS SESSION of Broadband Breakfast Live Online on Wednesday, September 27 – What Happens Next on Net Neutrality?

Mirroring the 2015 rules, the proposal – set to be released on Thursday – specifies that when regulating broadband providers under Title II, the commission would pass up 27 of the most onerous provisions in the law and hundreds of agency regulations that typically apply to Title II services like voice calling, Rosenworcel said in the announcement.

Rosenworcel said that internet access is essential to modern life, and needs to be regulated accordingly to ensure fair access.

“No one without it has a fair shot at 21st century success,” she said.

The move comes just one day after Anna Gomez was sworn in as a commissioner, giving Democrats at the FCC a 3-2 majority. The commission has been split since President Joe Biden took office, with his nominee Gigi Sohn withdrawing from consideration in March 2023, citing attacks on her character from lobbyists.

Republican Commissioner Brendan Carr issued a statement before Rosenworcel’s announcement on Tuesday cautioning against moving forward with net neutrality efforts. He cited an analysis by two Barack Obama lawyers, which highlighted the Supreme Court’s application of the “major questions doctrine” in a 2022 case limiting the Environmental Protection Agency’s ability to regulate emissions.

Under the doctrine, the court has held in recent years that federal agencies must have explicit authorization from Congress to impose regulations of major economic and political significance. Since the FCC did not receive congressional instruction to categorize broadband as a Title II service, the move is likely to be struck down, the lawyers wrote.

In an effort to codify expanded FCC authority over internet providers, congressional Democrats introduced in July 2022 a bill to explicitly define broadband as a Title II service. It was referred to committees, and no further actions have been taken on them.

The proposal will be a subject of discussion at the FCC’s open meeting on October 19. After its likely approval by the commission’s Democratic majority, the proposed rules will be up for public comment.