Seeking More Internet Oversight, Rosenworcel Pushes for Title II Authority Reinstatement

The FCC's abdicating its internet oversight authority in 2017 largely neutered the agency's ability to protect online privacy and to require ISPs to address lengthy outages, Chairwoman Jessica Rosenworcel said Tuesday as she announced the agency was moving to take that authority back. Reclassification of broadband as a service under Title II would end having to often jury-rig legal justifications for actions the agency is taking, she said, saying October's agenda will include a draft NPRM on reinstating the agency's 2015 net neutrality rules. The move met loud criticism, including from inside the FCC, as well as support.

“I didn’t waste time,” Rosenworcel quipped to one of the people in attendance before her speech at the National Press Club, seemingly referring to the net neutrality announcement coming a day after Anna Gomez’s swearing in as the third Democrat on the commission (see 2309250059). Some had expected net neutrality moves by the Rosenworcel FCC once it had that Democratic majority (see 2309070081). At the announcement were representatives of numerous net neutrality advocacy groups, including Public Knowledge, Common Cause and Free Press.

Networks need to be "fast, open and fair," Rosenworcel repeatedly said, saying the 2017 decision left it with limited ability to do that. Given the indispensable nature of internet access to modern life, "this repeal put the FCC on the wrong side of history, the wrong side of the law," she said. She said its Title II authority gave the agency the ability to intervene when public safety access is throttled. She said the FCC's Section 214 authority to take away authorizations from state-affiliated companies is compromised due to its lack of Title II oversight. She said broadband not being classified as a Title II service also makes it tougher for broadband-only providers to get pole attachment rights, and the agency would have more power under Title II to tackle robotexts.

Restoring Title II oversight means a uniform nationwide legal framework instead of a patchwork of state laws and contracting polices, Rosenworcel said. She waved off the argument Title II oversight is a stalking horse for rate regulation.

Minority Commissioner Opposition

Commissioner Brendan Carr urged Rosenworcel, as he did last week (see 2309210055), not to propose a net neutrality order likely to be overturned by the U.S. Supreme Court under the major questions doctrine. Carr again cited a paper last week from Obama administration U.S. Solicitor General Donald Verrilli and ex-Principal Deputy Solicitor General Ian Gershengorn that urges the FCC not to bring back rules based on the rescinded 2015 order (see 2206300066).

“As a former General Counsel of the FCC myself, I would encourage my Commission colleagues to heed the judicious guidance offered by these top lawyers from the Obama Administration and focus the FCC’s work on the numerous, important subjects that Congress has authorized the Commission to address -- from rural broadband and public safety to spectrum and national security -- rather than pursuing the Biden Administration’s unnecessary and unlawful plan for exerting government control over the Internet,” Carr said: “Heading down the path to Title II would not only push vital FCC matters onto the back burner, it would knock many of them off the stove altogether.” Commissioner Nathan Simington didn’t comment Tuesday. But at a March conference, he addressed the topic at length, suggesting the U.S. has “de facto net neutrality at this moment.” Simington also predicted Title II regulation “might face greater scrutiny” in the courts than it did after the 2015 order (see 2303060055).

“Just like there are Flat-Earthers, net neutrality is broken philosophy rejected by practical experience, market realities and rational thought,” emailed former Commissioner Mike O’Rielly: “The NPRM text will be telling, but the notion that broadband service is so important to deserve massive government regulation that absolutely will slow its deployment and reach to unserved Americans -- a supposed priority and legacy of the Biden Administration -- is lunacy,” he said.

“The FCC leadership's decision to revisit so-called 'net neutrality' regulations is a complete and utter waste of time.” emailed former FCC Chair Ajit Pai. “It's unfortunate that almost 1,000 days into the Biden Administration, FCC leadership can't come up with an accurate map of broadband availability, hasn't held a single spectrum auction that it started, hasn't improved Wi-Fi, and hasn't stemmed the increasing waves of robocalls overwhelming consumers -- but is determined to waste enormous time and effort on an issue that matters only to left-wing Beltway activists, Big Tech, and a few (alleged) comedians.” Arguments that the FCC has a long legal history of authority over common carriers and communications services aren’t likely to protect an eventual Title II net neutrality order from the U.S. Supreme Court’s major questions doctrine, said Wiley attorney Tom Johnson, who was general counsel of the FCC under the previous administration. Though the Communications Act gives such authority to the FCC, under the doctrine Congress’ desire to “punt” doesn’t mean a matter isn’t a major question that they can’t delegate, he said. Johnson also said Rosenworcel’s invocation of matters such as national security could disadvantage the agency in a court battle, because Congress explicitly acted on equipment security, undercutting the idea that such authority belongs to the FCC. Johnson said he will be particularly interested in whether the NPRM proposes allowing state net neutrality regimes such as California’s to exist, and whether it deviates from the 2015 version on matters such as rate regulation. “Title II is a very explcit major question,” said University of Minnesota's Christopher Terry, but it isn’t “crystal clear” how the court will react to FCC arguments about the agency’s longstanding authority.

Supporting the move, former Chairman Tom Wheeler emailed that the Title II proposal "will rectify the confusion resulting from the FCC’s previous failure to lead on this important topic. Both Republican and Democrat FCCs have tried to provide such oversight for the most important network of the 21st century."

Hill, Groups Weigh In

Senate Commerce Committee Chair Maria Cantwell of Washington and a bevy of other Democratic lawmakers praised Rosenworcel for pursuing a Title II net neutrality proposal. Gomez’s swearing in means the FCC “finally has the power to take action on the priorities important to the American people,” including “delivering on net neutrality,” Cantwell said in a statement. “We are thrilled” Rosenworcel is “acting decisively to protect the free and open internet for all Americans,” said House Commerce Committee ranking member Frank Pallone of New Jersey and Communications Subcommittee ranking member Doris Matsui of California in a statement. “We urge all of the Commissioners to support reestablishing the agency’s authority over broadband internet service,” which the FCC needs “to effectively protect consumers, promote affordable access to the internet, enhance public safety and take other important steps to benefit the American people.” Sens. Ed Markey of Massachusetts and Ron Wyden of Oregon, who led a Monday letter urging Rosenworcel to pursue Title II reclassification (see 2309250057), also praised the plan.

House Commerce Chair Cathy McMorris Rodgers, R-Wash., and Communications Chairman Bob Latta, R-Ohio, delivered a succinct denunciation of Rosenworcel’s plan. “Despite constant fear mongering, this debate was settled in 2017 when the Internet didn't break following the repeal of heavy-handed FCC regulations,” the Republican leaders said.

A host of groups and advocates announced their support. "Without TItle II authority, the FCC is left in a position where it must beg for pledges and promises from broadband providers to participate in closing the digital divide, rather than requiring it from these local monopolies,” said Public Knowlege CEO Chris Lewis. “Ensuring the nondiscriminatory provisioning of broadband internet access service has already been deemed to be within the FCC’s statutory authority,” CCIA Chief of Staff Stephanie Joyce said. “Reinstating those protections will ensure that America’s digital economy is inclusive, open, and stable.” Restoring net neutrality “is not a controversial move,” Fight for the Future Director Evan Greer said. “An overwhelming majority of Americans from across the political spectrum support it,” referring to a 2022 University of Maryland questionnaire by Nielsen.

“Powering up an outdated regulatory time machine to impose rules designed for a long-forgotten era runs directly counter to, and will likely derail, the critical achievement we are so close to reaching -- universal connectivity,” USTelecom CEO Jonathan Spalter said. The proposal “would hamper the development of the Internet at a time when consumers need it most,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy: “Proponents of utility-style regulation of the Internet have been proven wrong by history. Despite their predictions of doom, the Internet thrived before and after the blip of Title II regulations five years ago.”

“As a matter of policy, it’s wrong to go down this road again when there's no evidence of a problem justifying new burdensome regulations,” Free State President Randolph May said. “As a matter of law, it’s a big blunder because it’s very likely the Supreme Court will determine that any FCC action reimposing net neutrality regulations is a 'major question' and Congress has not clearly authorized the agency to exercise the power it claims,” he said.

“Despite dire predictions, the internet has thrived in the absence of utility-style net-neutrality regulations,” said Kristian Stout, International Center for Law & Economics director-innovation policy. Stout also questioned whether the FCC has the authority to impose Title II regulation on broadband: “As the U.S. Supreme Court has made clear through its ‘major questions’ doctrine, federal agencies cannot make major regulatory moves without explicit authorization from Congress.”

“The original justification for accessing sweeping Title II authority has become obviously thin,” NCTA CEO Michael Powell said. “For two decades, there has been only one two-year period in which the FCC applied Title II to the internet, yet the internet has been open throughout because it makes business sense to offer it that way,” he said. Powell predicted “a drawn out, messy proceeding with lots of wasted expense to get rules that might not survive the next election and are unlikely to pass constitutional muster when they reach the Supreme Court.”

Details remain to be seen, but "twentieth-century utility-style rules are not needed at this time,” the Wireless ISP Association said: “The marketplace has thrived in the very absence of such regulation. Low prices, capex output, and technological and service innovation abound.”

In her speech, Rosenworcel also made a plea for avoiding some of the "ruckus" that accompanied previous net neutrality debates, such as death threats received by Chairman Ajit Pai. "Make some noise ... but keep it in the lines," she said.