Net Neutrality Rules 'Court Approved,' Rosenworcel Says as FCC Largely Restores 2015 Framework

FCC commissioners were met with applause following a 3-2 vote that restored the net neutrality framework and reclassified broadband internet access service (BIAS) as a Communications Act Title II telecom service during the agency's open meeting Thursday (see 2404190038). “Essential services [require] some basic oversight,” Chairwoman Jessica Rosenworcel said. She told reporters following the vote that the rules are "court tested and court approved" because they are "very consistent with" prior rules that were upheld in court: "I'm confident that these rules will also be upheld."

Commissioners Brendan Carr and Nathan Simington issued lengthy dissents. Speaking for 33 minutes, Carr described what he called the "leftist politics" and political pressures behind the decision. “The agency is doing what it’s been told to do by the executive branch,” he said: The White House is pursuing “unchecked regulatory excess.” Simington said he would submit his dissent in writing instead of delivering it during the meeting.

Commissioner Anna Gomez, speaking for a little more than four minutes, described the item as pro-consumer. "The value is so great that we cannot wait for the flood to arrive before we start to build the levee," she said, repeating her statement in Spanish. Starks spoke for 13 minutes about ensuring broadband “has real oversight [and] puts consumers in the driver’s seat.” He said that lack of Title II authority undercuts the FCC’s national security role in safeguarding networks and that he would have a longer written statement.

"This is common sense," Rosenworcel said, "but in a world where up is down and down is up, the last FCC threw this authority away and decided broadband needed no supervision." Consumers "have made clear to us they do not want their broadband provider cutting sweetheart deals," she said, "with fast lanes for some services and slow lanes for others."

"Too often the rhetoric around controversial proceedings is focused on extreme examples and worst-case scenarios," said Commissioner Geoffrey Starks: "In zooming in that way, we overlook the individuals our decisions are designed to impact." Starks pushed back on claims that the FCC "has no role in national security" and said "threats against our networks are real."

"The Executive Branch explicitly recognizes and supports the unique role the Commission plays in ensuring our national security as it relates to broadband within the whole-of-government approach," Starks added. He warned that many safeguards protecting networks "will be out of reach" without Title II reclassification.

The item as approved had several revisions from the draft released earlier this month. Starks noted the order "makes clear that this item is not an effort to regulate rates," saying he doesn't support rate regulation. The order clarified that the FCC's "efforts to properly target nefarious actors within our domestic broadband networks will not have negative unintended consequences for global data flows and international interconnection agreements," he added. It also clarified the commission's throttling rule "to ensure that we avoid loopholes," Starks said.

Citing the order's "bogus" justifications, Carr said that Congress "never passed a law saying the internet should be heavily regulated like a utility." The order "makes today's big tech behemoths even stronger than before" and isn't about "correcting a market failure."

In a similar message, Simington said the order isn't clear that there is "room for prioritizing the latency of real-time applications." The internet is "a limited capacity network," he said, and "performance characteristics like bandwidth, latency, and jitter are scarce resources that need to be allocated, ideally in a way that promotes competition and maximizes value to consumers." Simington also questioned the order's exclusion of non-BIAS data services. The order "can't even tell us what a non-BIAS data service is," he said, and it "refuses to give a definition."

Carr and Simington also raised legal questions about Title II reclassification. Simington warned of "regulatory whiplash," adding the "legitimacy of the commission is called into question if after every change of administration, it reverses course on a question so fundamental as whether broadband is a common carriage service." Administrative agencies, Carr said, "must point to far more than an ambiguous statute to persuade a reviewing court that Congress authorized the agency to act," and the FCC doesn't "presume to have the sweeping power to refashion Title II into an entirely new legislative scheme."

"While we waste our time and saddle a well-functioning industry with unnecessary rules and investment-stifling legal uncertainty, this commission continues to give a free pass" to large edge providers, Simington said, calling these companies the "real villains of the free and open internet."

5G Slicing

FCC officials clarified that the agency didn’t make major changes to provisions that address how 5G slicing is treated, despite a push from supporters and opponents of revised rules (see 2404160055). However, the final rules provide additional clarification on such non-BIAS services, officials said during a news conference.

The draft rules lack conclusions about whether slicing should be exempt, noting carriers are in the early stages of adopting the technology (see 2404050053).

The rules make clear “that speeding up of … content of a consumer facing mass-market service is not permitted,” said Adam Copeland, deputy chief of the Wireline Bureau: “If that is done within a 5G network slice, we would have to evaluate the service to determine what the underlying service in that slice looked like.”

Michael Calabrese, director of the Wireless Future Program at New America, told us he was heartened by comments from Starks that the FCC tightened the no-throttling rules. “That impacts slicing, since the two issues are tied together,” Calabrese said. Mobile carriers plan on using slicing to offer quality-of-service “fast lanes” for popular applications, he said: “They won’t be able to offer more favorable treatment to specific applications or content if, as we believe, the no-throttling rule has been clarified to prohibit this, as the 2015 rules were widely interpreted as doing.”

Who will invest in an open radio access network “when its core functionalities -- virtualization and network slicing -- might violate an amorphous rule against ‘impairing’ or ‘degrading’ traffic?” Carr asked during his lengthy statement opposing the order.

CTIA President Meredith Baker said: “The FCC’s decision to turn back the clock and reimpose utility-style regulations threatens to undermine this achievement, disincentivizing investment, inhibiting competition and diverting resources from critical efforts that would advance connectivity, such as creating a spectrum pipeline, that will help ensure all Americans benefit from wireless innovation.”

Rosenworcel defended clarifying broadband rules under Section 214 of the Communications Act. As a result of past FCC decision-making, “this agency had no authority over broadband under Title II,” Rosenworcel said. “As a result, when we took away the authority from those Chinese companies, we were not taking away their authority to provide broadband in this country,” she said. Rosenworcel said the FCC has evidence based on Chinese company websites that they continue offering broadband in the U.S.

“I am always happy … to do whatever we can to address the threats posed by entities that are beholden” to the Chinese Communist Party, Carr said. China Mobile has continued to offer cloud, data center and other services in the U.S. after its Section 214 authority was revoked, he said (see 1905090039). Carr noted that he has long called on the FCC to prevent companies that possess Section 214 authorizations from connecting to providers that don’t. The government has other tools to address these companies and didn’t need to reclassify broadband to take action, he said. “It’s far from clear” that Title II “reaches” these companies, he said.