FCC Moves to Reinstate Net Neutrality, Keeps Rules Open for Comment

WASHINGTON, October 19, 2023 – The Federal Communications Commission voted on Thursday to move forward with its proposal to reinstate net neutrality rules.

The move would reclassify broadband internet as a telecommunications service under Title II of the Communications Act of 1934, opening the industry up to more expansive oversight from the FCC, akin to its authority over voice providers.

“You’re dealing with the most central infrastructure in the digital age. Come on, it’s time for a national policy,” said FCC Chairwoman Jessica Rosenworcel in remarks supporting the proposal.

Similar rules were put in place under the Obama administration’s FCC, but Trump-appointee Ajit Pai repealed them after just two years in 2017.

Reclassifying broadband would bring restrictions on adjusting internet traffic speeds and other heightened fairness standards. The commission’s proposal chooses not to enforce 26 of the most onerous Title II provisions, like explicit rate regulation and network unbundling.

The proposal will be up for public comment until mid-January 2024, after which the commission will deliberate and either issue a new proposal for comment or put a rule into effect.

Commissioner Brendan Carr expressed doubt about the move’s legal viability. The FCC’s 2015 implementation of net neutrality rules passed legal muster, as did a similar 1998 reclassification of DSL services to Title II status.

But there has since been a “sea change in administrative law,” said Carr. The Supreme Court has in recent years been less deferential to federal agencies’ interpretations of the law, bucking the practice of giving expert regulators broader authority to carry out their congressional mandates.

Absent an explicit move from Congress, the Title II reclassification “will not survive a Supreme Court encounter,” Carr said.

Commissioners voted along party lines, with the two Republicans dissenting and the three Democrats approving the measure. Despite net neutrality being a priority for President Joe Biden and Chairwoman Rosenworcel, the commission was unable to move on the issue until September, when the confirmation of Commissioner Anna Gomez created a Democratic majority.

The proposal will also not put broadband providers in the Universal Service Fund contribution base with other telecommunications service providers. There have been calls by lawmakers to update the program’s funding model, but the FCC has left it to Congress to make those changes.

Comments on the proposal will be due December 14. Reply comments will be due January 17, 2024.