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Net Neutrality

Public Interest Groups Blast FCC For Refusal to Extend Public Safety Deadline on Net Neutrality Comments

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Photo of Andy Schwartzman from the Benton Institute

April 22, 2020 – Multiple voices weighed in on the Federal Communications Commission’s public notice seeking comment on its prior net neutrality decision, although public interest and some congressional representatives expressed anger at the agency’s refusal to allow additional time for comments.

On Monday, the FCC denied further extensions of time on the agency’s notice seeking to “refresh the record” on the net neutrality proceeding involving public safety, pole attachments, and the Lifeline program for low-income American’ access to telecommunications and broadband.

See Drew Clark’s in-depth analysis of the D.C. Circuit Court’s Decision in Mozilla v. FCC, which highlighted the court’s requirement for an agency remand, “D.C. Circuit’s Decision in Net Neutrality Case Likely to Open New Fronts of Attack Against FCC,” October 7, 2019.

But several industry and industry-focused groups were supportive of the agency’s general approach in eliminating net neutrality requirements.

Benton Institute for Broadband and Society Senior Counselor Andy Schwartzman called  “the denial of this extension request [] shameful.”

“[FCC] Chairman [Ajit] Pai and the FCC staff don’t think that the pandemic is enough of an emergency to provide more time for first responders to file comments about how the Commission can ensure that first responders can serve the public in emergencies like pandemics,” Schwartzman said.

Added Rep. Anna Eshoo, D-Calif., “When the Trump FCC repealed net neutrality two years ago, it completely ignored public safety. Santa Clara County firefighters paid a steep price when Verizon throttled their data speeds as they fought the worst fire in California’s history, and the County was helpless to resolve the issue. The County sued the FCC and the D.C. Circuit Court required the FCC to revisit its net neutrality repeal to account for public safety.

“Now, when these same first responders of the Santa Clara County Fire Department are requesting a very reasonable extension to file their comments in the FCC’s order because they are on the front lines in responding to the worst pandemic of our lifetimes, Chairman Pai has ignored their pleas,” said Eshoo.

A group of advocates including Public Knowledge, Access Humboldt, Access Now and the National Hispanic Media Coalition did file comments by the Monday deadline.

“In the comments, we explain how the FCC should reassert its authority over broadband providers so that it can properly fulfill its responsibilities. In particular, as millions of Americans are staying home due to the pandemic, it has become clear that reliable, affordable broadband access is important to allow people to work and attend classes from home — and is even a matter of public safety,” said John Bergmayer, legal director of Public Knowledge.

Industry-supportive groups instead praised the FCC’s effort to address the appeals court’s remand.

The Wireless Internet Service Providers Association said that the FCC’s “restoring internet freedom” order “put an end to stultifying utility-style regulation for WISPs,” said Louis Peraertz, vice president of policy for WISPA:

“It has fostered tremendous growth, investment and innovation, transforming the WISP marketplace,” said Peraertz. “Fiber and other exciting broadband technologies blossom, bringing more power, capacity and coverage to WISP networks and customers. Moreover, [the order] allows WISPs to more flexibly add and then serve their subscribers – a fact which is especially important not only in reducing the rural digital divide, but also in helping our nation successfully combat the COVID-19 pandemic.”

WISPA called for the FCC to grant WISP access to pole attachments at “just and reasonable rates just like providers of ‘telecommunications service’ and cable services,” said Peraertz.

TechFreedom General Counsel Jim Dunstan said that “the FCC need not, and should not, reconsider this fundamental aspect of its 2018 Order,” referring to the regulatory status of broadband services.

“The issues subject to remand are very narrow, and the FCC’s charge is only to better explain the impact of the return to Title I regulation on public safety, pole attachments, and the Lifeline program. That bar is very low and the FCC should have no problem” in explaining that reasonable access for pole attachments are technologically neutral, he said.

Technology Policy Institute President Scott Wallsten also defended the FCC’s deregulatory approach.

“The economics and history of common carriage regulation under the previous, Title II regime tends to be incompatible with rapid innovation and unsustainable over time.” He also argued that “network neutrality is inconsistent with high-performing public safety communications.”

Net Neutrality

FCC’s Simington Welcomes Congressional Action on Net Neutrality

The commissioner prefers going the route of legislation over Democratic FCC commissioners leading the charge for neutrality protections.

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Photo of Federal Communications Commissioner Nathan Simington, left

WASHINGTON, June 1, 2022 – Federal Communications Commissioner Nathan Simington said last week he would welcome congressional legislation to address debates over policy on net neutrality that continue to rage as the commission considers provisions that would protect the principle.

In a keynote address at an event Thursday on net neutrality hosted by think tank The R Street Institute, the Republican commissioner — who has opposed the net neutrality provisions imposed in 2015 by the commission under the former President Barack Obama – indicated he would prefer legislative action on net neutrality policy to proposals of Democratic FCC commissioners to regulate it through policy of the commission.

“Personally I would welcome congressional action to put this issue to rest,” said Simington, “I think a good law would focus on preventing blocking.”

Under the administration of former President Donald Trump, the FCC had in 2017 reversed the Obama-era net neutrality provisions, which prevented internet service providers from having a hand manipulating the data traffic over their networks to do things like provide faster or free access to certain applications.

Simington’s comment is significant for two reasons: because it comes after FCC Chairwoman Jessica Rosenworcel told lawmakers earlier this year that she is committed to the idea of the restoration of net neutrality principles; and because the commission is on the cusp of a Senate-approved fifth commissioner in Democrat and net neutrality advocate Gigi Sohn, which would break the 2-2 party split and would signal less friction when approving the Democratic agenda.

Thursday’s event also featured a panel that discussed issues such as whether a new agency must be created to deal with issues of net neutrality or whether an existing body such as the Federal Trade Commission can fulfill that role.

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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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