Rosenworcel Promises She Will Keep Battling for Net Neutrality Rules
FCC Chairwoman Jessica Rosenworcel vowed she will continue fighting for the commission's net neutrality order following the 6th U.S. Circuit Court of Appeals' decision that stayed the rules Thursday (see 2408010065). "The American public wants an internet that is fast, open and fair," and Thursday's decision "is a setback, but we will not give up the fight for net neutrality," Rosenworcel said.
"I cannot overstate how strongly I disagree" with the decision to "stall our net neutrality rules," Commissioner Geoffrey Starks said. "Prior precedent, including the Supreme Court and D.C. Circuit, stood with the agency in supporting our ability to protect consumers," Starks said. "The voices of the American people are clear," he added: "I agree and will continue the fight because this decision jeopardizes that freedom."
“Title II activists have repeatedly turned down common sense legislative efforts to codify net neutrality rules,” Commissioner Brendan Carr said Friday: “Yesterday’s court decision was a good win and a step in the right direction. But the work to unwind the Biden-Harris Administration’s regulatory overreach continues, including at the merits stage of this case.”
"The definition of insanity is to keep doing the same thing over and over with no result," said Reed Hundt, a former Democratic FCC chair. Net neutrality is "a nonsolution to a nonproblem" and the "key move in policy is to define the problem to be solved," Hundt said. Commissioner Brendan Carr called the decision a "good win in the broader [and] ongoing effort to rein in regulatory overreach from Washington."
"Industry lobbyists and other net neutrality opponents have argued, loudly but cynically, that the Trump-era repeal somehow spurred broadband deployment and speed increases, claiming that the rules’ presence impairs those upgrades," Wood said. "This is nonsense." Wood continued, "We’re confident that we will ultimately prevail in this case" because "this FCC decision followed the law and classified broadband as the essential telecommunications service Congress intended such offerings to be."
Industry groups welcomed the stay. In a joint statement, ACA Connects, CTIA, NCTA and USTelecom noted that broadband "has been thriving under a light-touch regulatory framework." The groups were "pleased" that the 6th Circuit "preserved that framework during the appeal process, thus shielding providers and their customers from the many harms that would stem from attempting to comply with the FCC’s ill-fitting and ambiguous common carrier mandates." In a separate statement, ACA Connects President-CEO Grant Spellmeyer called the ruling a "victory for our members."
“ISPs are likely to win the case, with the Sixth Circuit likely to formally overturn the FCC order in the first part of next year,” New Street’s Blair Levin said Friday in a note to investors. That decision likely isn’t material “as an economic matter to the ISPs” but removes “a cloud of potential problems down the road.” It also potentially reopens the door to state regulation, Levin said. The ruling “also makes it more difficult” for Rosenworcel “to achieve her objectives on other issues such as bulk billing and border gateway security,” he said.
The 6th Circuit is conservative, which is why the industry filed there, said a former top ISP executive. Much depends on the panel that will hear oral argument, but if it’s dominated by Republican nominees, they’re likely to look closely at recent U.S. Supreme Court decisions on Chevron and evolving major questions doctrines, the official said: “They’re not going to give the agency Chevron deference whatsoever.”
For Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman the case is "far from over." Schwartzman, added, "We remain hopeful that full briefing will demonstrate that the FCC acted lawfully to restore oversight over broadband, and that these new rules will promote competition and free speech and protect public safety."
Matt Wood, Free Press vice president-policy, agreed. The setback is "temporary" and "doesn't change the fact that millions of internet users have demanded Title-II safeguards whenever and however they go online."
The decision is “unfortunate and deprives consumers of the accountability and protection measures reinstated by the commission after careful review,” emailed Raza Panjwani, senior policy counsel at New America's Open Technology Institute. “Fortunately, state net neutrality laws passed in recent years will continue to guarantee fundamental open internet protections for consumers in those states and ensure that ISPs face basic accountability,” Panjwani said. “But that’s no substitute for a robust federal baseline of protections.”
It's "been clear that the FCC's action likely would be held unlawful as exceeding the agency's authority," Free State Foundation President Randolph May said. The FCC will likely lose if it pursues the case with the Supreme Court because SCOTUS "already telegraphed" that this is a major question issue, May said, adding that it would be "so much better for America's consumers if the commission and the Biden Administration would turn away from the pursuit of fruitless aggressive regulatory endeavors."
Sens. Ed Markey, D-Mass., and Ron Wyden, D-Ore., said the stay “will leave Americans without critical net neutrality protections and leave the [FCC] without its rightful authority over broadband.” That “is unacceptable,” they said: “We need net neutrality to protect the free and open internet and ensure that internet gatekeepers cannot control what we see, who we talk with, and how we communicate online.”
Rep. Anna Eshoo, D-Calif., called the ruling “extremely disappointing” and “a step back for Americans because they deserve a fast, free, and open internet that will drive innovation, expand our economy, and promote free speech and democracy. Net neutrality is essential for public safety, national security, and improving the quality of life for all Americans.”