Communications and Technology

Net Neutrality Rears Its Head Once Again

Just in time for Halloween, Chairwoman Jessica Rosenworcel and the newly minted Democratic majority on the Federal Communications Commission (FCC) resurrected the specter of net neutrality – the effort to reclassify internet service providers as common carrier public utilities under Title II of the Communications Act of 1934.

As far back as 2007, members of ALEC’s Communications and Technology Task Force have cautioned lawmakers and regulators about the negative consequences of classifying the internet as a Title II common carrier service instead of a Title I information service. ALEC’s Model Resolution on Network Neutrality finds that such regulations threaten to undermine America’s internet ecosystem, impede innovation and investment, and increase costs for consumers.

Net neutrality was high on President Biden’s competition and antitrust policy agenda going back to the early days of his Administration, but the FCC’s 2-2 partisan split ensured the agency could only focus on bipartisan priorities with consensus from the Republican commissioners. For the first three years of Biden’s term, the agency worked in a bipartisan fashion on efforts to ban Huawei and ZTE hardware from our nation’s network infrastructure and overhaul the FCC’s national broadband coverage maps.

However, with full Democratic control of the FCCand bipartisanship no longer required, the agency’s top priority seems to be unilaterally reviving the dubious 2015 Obama-era net neutrality rules that were repealed by the Trump Administration’s “Restoring Internet Freedom Order” in 2018.

Chairwoman Rosenworcel recently unveiled a draft Notice of Proposed Rulemaking (NPRM) and intends to kickstart the formal administrative rulemaking process with a preliminary FCC vote scheduled later this month. As regulators and legislators once again debate the merits of net neutrality in the coming months, it is important to keep these key facts in mind:

  1. Since net neutrality’s 2018 repeal, consumer internet speeds and private sector investment are up in a thriving and competitive market.

With several years of pre- and post-net neutrality data now available for study, the results are undeniable. Americans for Tax Reform’s Digital Liberty project compared Ookla speed test data from 2015-2018 and 2018-2021, finding that both fixed broadband and mobile download speeds soared after net neutrality’s repeal. Meanwhile, U.S. broadband investment reached a reported 21-year high of $102.4 billion in 2022, a 19% increase from the previous year, according to USTelecom.

Internet customers in 2023 enjoy a growing variety of service providers competing for their business in the marketplace, ranging from more traditional providers, such as fiber and wireless internet, as well as more novel innovations in telecommunications like fixed wireless, internet delivered by LEO satellites, and even experimental solutions like Microsoft’s Airband Initiative to deliver internet through unused TV white spaces.

A return to 2015’s net neutrality regime will inject more uncertainty and increase regulatory compliance costs for broadband providers, inhibiting the goals of federal, state, and municipal governments to solve the issue of broadband access through efforts like the BEAD program.

  1. “Major Questions Doctrine” could spell doom for net neutrality in the courts without clear congressional authorization.

Unlike previous efforts to litigate net neutrality in the courts in the 2010s, some analysts believe recent Supreme Court precedent in West Virginia v. EPA could be a gamechanger. The Major Questions Doctrine requires “clear congressional authorization” when an agency seeks to decide an issue of major national significance. Courts in the past had traditionally deferred to the agency’s interpretation of an ambiguous statute, but the Supreme Court clarified that clear congressional intent is necessary in cases where there is something extraordinary about the “history and breadth of the authority” an agency asserts or the “economic and political significance” of that assertion.

In the case of net neutrality, there is no dispute about Congress’ lack of intent; the Communications Act of 1934, later amended by the Telecommunications Act of 1996, does not grant the FCC sweeping powers to regulate the modern internet. Therefore, net neutrality advocates hoped to contort the law by shoehorning broadband service into a Title II regulatory regime designed to address telephone monopolies in the 1930s.

Without a decisive legislative action from the people’s elected representatives in Congress, this appears to be a paint-by-numbers Major Questions case should litigation reach the Supreme Court yet again.

  1. Contrary to the predictions of the most egregious doomsayers, the world did not end with the repeal of net neutrality. This will only serve to gum up the works at the FCC.

Leading up to the net neutrality repeal in 2018, proponents made hyperbolic assertions that the internet would “end as we know it” without common carrier regulations for ISPs, an eerie precursor to today’s claims that generative artificial intelligence will lead to human extinction. Advocates argued that without strict government regulations mandating the equal treatment of all internet traffic and content, service providers would have no qualms about throttling or blocking content delivered over their networks, resulting in a poor experience for users.

Six years later, their apocalyptic vision has not come to pass, and the internet is arguably better than ever for consumers, as illustrated by the download speed and record investments in infrastructure noted above. Instead of rehashing the tired net neutrality debate yet again, the FCC should keep its eye on the ball and work with congressional leaders on higher priority wins for the American people, like renewing the FCC’s spectrum auction authority.

Please see below for more helpful ALEC resources on this topic: