The Federal Communications Commission is set to try to reinstate the controversial policy known as net neutrality, setting up a heated debate about the future of the internet.
FCC Chairwoman Jessica Rosenworcel said Tuesday that she will share a rulemaking on restoring net neutrality, a legal principle demanding that internet service providers treat all data equally and not discriminate based on their source or destination, with her colleagues. The policy proposal has been expected since the Senate voted to approve FCC Commissioner Anna Gomez in September, a long-needed vote that would break the agency’s 2-2 party split.
“I think it’s time for Washington to step back in with a national policy to make sure internet access is fast, open, and fair,” Rosenworcel said during a speech at the National Press Club.
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The decision to reverse the Obama-era net neutrality policy by former FCC Chairman Ajit Pai placed the Trump-era FCC on the “wrong side of history, the wrong side of the law, and the wrong side of the American public,” Rosenworcel added.
Rosenworcel said she will release the new rule on Thursday, which will be available for public comment. The commission will then host a vote among the commissioners in three weeks. If it is approved, the rulemaking process will begin.
Rosenworcel has long been an advocate of net neutrality. “This is crazy. The internet should be open and available for all. That’s what net neutrality is about,” she said in 2020.
Net neutrality relates to how the internet is treated under the Communications Act of 1984. The FCC, under Obama, voted in 2015 to classify broadband internet as a “common carrier” under Title II of the law, meaning that internet service providers could face penalties if they showed preferential treatment for some online users over others — by, say, throttling a website’s internet speed or access.
Republicans challenged the 2015 net neutrality rules, claiming they could hurt innovation and limit access. The rule was reversed in 2017 by Trump-appointed FCC Chairman Ajit Pai. The FCC voted to remove the restrictions on throttling and diminished the amount of information reported to the FCC. Pai’s decision drew immense ire from liberal activists, culminating in death threats to his family. Rosenworcel on Tuesday denounced the treatment of Pai.
At the time, many activists and Democrats argued that Pai’s decision would severely limit the internet and restrict access speeds. HBO host John Oliver notably claimed that ISPs would intentionally slow down service or create paid “fast lanes” reserved for deep-pocketed customers.
The dire circumstances predicted by Oliver never came to pass, and the internet has continued to operate as it did in the past.
Brendan Carr, a Trump-appointed Republican FCC commissioner, noted analysis by two former Obama solicitor generals concluding that the Supreme Court would strike down the push for Title II based on the ruling in West Virginia v. EPA. The court ruled in that case that the Environmental Protection Agency had extended its authority too far when it tried to regulate emissions and that the regulations fell underneath the “major questions” doctrine, a legal principle that Congress does not delegate issues of major economic or political significance to federal agencies.
It would be “folly” for the FCC to try to regulate broadband through Title II, Carr said.
Jonathan Schwantes, senior policy counsel for Consumer Reports, praised Rosenworcel’s announcement Tuesday, saying that the new net neutrality rule will “ensure that broadband providers are properly overseen” to eliminate junk fees, deceptive advertising, and unreliable service.
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The announcement comes a day after 27 Democratic lawmakers, including Sens. Ed Markey (D-MA) and Ron Wyden (D-OR), sent a letter to Rosenworcel imploring her to reclassify broadband as a telecommunications service under Title II.
FCC Commissioner Anna Gomez was approved on Sept. 7. Gomez said she would support reclassifying the internet as Title II, making internet service providers “common carriers.” This would allow the FCC to implement additional regulations over ISPs, including net neutrality.
