On 7 September, the U.S. Senate confirmed Anna Gomez as the newest commissioner for the Federal Communications Commission (FCC), by a vote of 55-43. The successful confirmation returned the FCC’s count of commissioners to its normal five, filling a seat that had remained empty ever since former chairman Ajit Pai stepped down following Joe Biden’s inauguration in January 2021.
Gomez’s confirmation broke open an effective 2-2 deadlock at the FCC by adding a third Democratic-nominated commissioner to the agency. Just 19 days later, on 26 September, current FCC chairwoman Jessica Rosenworcel proposed to reestablish the rules that classified broadband service providers as common carriers.
In other words: Net neutrality—and the debate around it—is back.
Far from being a settled topic in the United States, the issue of whether or not to implement net neutrality has oscillated back and forth in recent years. This time around, the FCC is pointing to the COVID-19 pandemic as well as the 2021 bipartisan infrastructure deal as reasons for classifying broadband as an essential service—putting it in the same category as water, power, and phone service. And the agency is likely to try to move fast, to try to implement the decision before next year’s elections.
Help, I’ve forgotten what net neutrality is
Net neutrality can mean different things depending on whom you ask and which country’s legislation you’re considering. In the United States, net neutrality has come to broadly refer to the idea that Internet service providers (ISPs) should not be able to prioritize or throttle data depending on the data’s source, or charge (either content providers or ISP customers) extra for faster service.
The U.S. debate around net neutrality stretches back to the Telecommunications Act of 1996. The FCC’s 2015 Open Internet Order classified broadband as an essential service, and the subsequent Restoring Internet Freedom Order in 2018 undid the 2015 move.
Why are we debating net neutrality again?
Great question. Part of the reason is that the issue has become a highly political one. The Open Internet Order was implemented under a Democratic-majority FCC led by Tom Wheeler during the Obama administration. The Restoring Internet Freedom Order happened under a Republican-majority FCC led by Pai. It’s unsurprising, then, that with the FCC swinging back to a Democratic majority, the cycle would begin anew.
There’s also a sense from the current FCC that times have changed enough to merit revisiting the issue. The pandemic “made it clear that broadband is essential infrastructure for modern life,” Rosenworcel said in her remarks following the FCC’s announcement. “Access to the Internet is now access to everything, and common sense tells us that the nation’s leading communications watchdog should have the muscle it needs to protect consumers and make sure their Internet access is fast, open, and fair.”
However, such commonsense arguments alone likely won’t be enough to return broadband to an essential service classification. “The Commission has the onus here of showing that these regulations are needed, and that they’re justified,” says Diane Holland, a partner at the Washington D.C.–based law firm Wiley Rein.
Holland previously worked at the FCC on enforcement after the Telecommunications Act of 1996 was passed and later for the Wireline Competition Bureau. She notes that many of the “doomsday scenarios” about the lack of net neutrality during the early days of the pandemic did not come to pass. ISPs did not throttle or prioritize data. Internet service remained robust even as more people relied on it to work or attend school remotely.
Tom Johnson, also a partner at Wiley Rein, joined the FCC as general counsel just prior to the 2018 Restoring Internet Freedom Order. He shares a similar assessment. “I think the question for the FCC…when they contemplate action like this is: What is the reason for…this additional regulation?” he says. In other words, hypotheticals aren’t enough, and even if the FCC feels that broadband should be an essential service, it can’t rely solely on the things that could happen if the country doesn’t have net neutrality. The FCC also has to show why the current classification is failing in some way that a reclassification would rectify.
How are ISPs affected by this back-and-forth classification?
From a purely technological standpoint—they aren’t. At least, not meaningfully. The switches and routers that ISPs use to send data to you are the same regardless. What changes is how ISPs are allowed or required to use those switches and routers—whether they’re explicitly required to treat all data equally, for example, or whether they’re allowed to prioritize some data over the rest for one reason or another. There may be some cost in implementing new routing procedures, but that’s peanuts compared to actually building out infrastructure.
On the subject of infrastructure, there’s long been an argument that net neutrality discourages investment in new infrastructure. It will be more difficult, the argument goes, for ISPs to recoup the cost of their investment if they’re subject to regulations like fixed rates. However, investment actually went up during the years in which the Open Internet Order was in effect—but even that could be misleading, because infrastructure rollouts are long, multiyear affairs.
How long do I have to hear about net neutrality this time around?
Probably not that long, all things considered. The FCC is currently seeking comments for its notice of proposed rulemaking, ahead of a vote scheduled for 19 October. Following the vote—which will pass—there will be a longer period for public comments through 14 December, and a deadline for the FCC to reply by 17 January 2024. “And then, at some point in 2024, I think we can expect to see an order,” says Johnson.
“I think the fact that we’re entering an election year probably has something to do with how quickly this proceeding will move to actual rules,” says Holland. It helps that the FCC is modeling its current proposal heavily on the successful 2015 order, she adds.
Of course, there will be legal challenges to the eventual order, and even if it survives those, there’s nothing to prevent a future Republican-led FCC from deciding to swing back the other way at the earliest opportunity. If the net-neutrality pendulum is to ever really wind down, it will probably take an act of Congress to follow up on the Telecommunications Act with clear legislation that defines broadband as an essential service—or doesn’t.
Until then, see you next time the pendulum swings back.
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