Democratic majority on the FCC aims to reinstate Obama-era net neutrality rules

“Net neutrality” regulations are likely coming back.

With Anna Gomez as the newly confirmed fifth member of the Federal Communications Commission, Chairwoman Jessica Rosenworcel has a Democratic majority and wasted no time announcing plans to reinstitute regulations imposed during former President Barack Obama’s administration and repealed after former President Donald Trump took office.

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Reviving net neutrality regulations is a priority for President Joe Biden’s administration, and he signed an executive order in 2021 asking the FCC to do so. Supporters of the regulations argue they would prevent internet service providers, or ISPs, from favoring some websites and “throttling” others.

The FCC plans to reclassify broadband services under Title II of the 1996 Telecommunications Act in order to have much more power over the networks people have come to rely on for work, commerce, learning, and entertainment. Title I classification, which is currently in place, gives the FCC ancillary authority to regulate information service providers. A shift to Title II would give the FCC explicit rulemaking authority to prevent “unjust or unreasonable” practices by telecommunications providers. The latter allows a much more expansive role for regulators.

This is the latest back-and-forth in how the agency regulates the infrastructure of telecommunications. During the Obama presidency, then-FCC Chairman Tom Wheeler imposed the more heavy-handed, utility-style approach to much fanfare. Equally dramatic was the public’s reaction when net neutrality was repealed during the Trump administration under Chairman Ajit Pai.

Late-night talk show comedians, such as Stephen Colbert and John Oliver, even weighed in, warning about the consequences of a return to light-touch regulation. Other opponents of the rollback predicted the end of the internet as Americans had come to know it and helped inspire a record number of comments to be filed in opposition to the move.

While those dire predictions have not materialized in the years since the repeal, Rosenworcel pointed to state net neutrality laws that she thinks have kept providers from blocking content, throttling data, or allowing for paid prioritization of data across networks. She also pointed to isolated incidents of services being throttled in emergency situations and access being canceled during the COVID-19 pandemic despite assurances from providers that they would not cut off service of those unable to pay.

The American Civil Liberties Union praised the proposed return of net neutrality in a press release. “As the expert agency tasked with regulating communications services, it is critical that the FCC have the ability to regulate one of the most important communications mechanisms of our time — broadband,” senior policy counsel Jenna Leventoff said. “We look forward to working with the FCC to ensure that it uses Title II authority to make sure that everyone, regardless of their race, ethnicity, or income, has access to high speed, reliable, and affordable internet.”

Internet service providers oppose the FCC’s attempt to reinstate net neutrality because a Title II classification would allow the FCC to engage in rate regulation, the setting of prices for internet service, although Rosenworcel pledged she would refrain from doing so. The proposal also stops short of asking ISPs to share their network infrastructure with competitors, all things Title II would technically allow.

But some still worry that the mere granting of those powers to the agency would chill private investment in the networks, slowing their improvement and expansion. This concern is heightened by a parallel proceeding at the FCC involving implementing the 2021 Bipartisan Infrastructure Law that provided $65 billion in subsidies to close the “digital divide.” In its effort to provide broadband to areas without access, the agency has signaled a willingness to impose build-out requirements, regulate rates, and other measures it is currently assuring critics it won’t undertake with Title II net neutrality.

The biggest hurdle for the FCC may eventually be at the Supreme Court. Two top Obama administration lawyers have counseled that the Supreme Court would be unlikely to uphold Title II classification for broadband. Former Solicitor General Donald B. Verrilli Jr., who represented the federal government from 2011 to 2016, and former acting Solicitor General Ian Heath Gershengorn released a paper arguing that the conservative court wouldn’t allow the FCC to use a “common carrier” approach because of the recent resurgence of the major questions doctrine.

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The legal principle, which holds that an executive agency is not allowed to institute major economic or political policies without explicit direction from Congress, gained prominence in 2022’s West Virginia v. Environmental Protection Agency case involving environmental regulations. But the same limiting principle could stop the FCC from instituting net neutrality without congressional action.

The FCC will vote on whether to move forward with the plan and request comments from the public on the proposal, which will be open until approximately mid-December.